ECCLESTON v SMITH [2007] NSWCA 22 (23 February 2007)

Last Updated: 26 February 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: ECCLESTON v SMITH [2007] NSWCA 22


FILE NUMBER(S):
40191/06

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

JUDGMENT DATE: 23 February 2007

PARTIES:
Amy ECCLESTON by her tutor Ian ECCLESTON
May SMITH

JUDGMENT OF: Mason P Beazley JA Bryson JA

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


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

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

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

DECISION:
Appeal allowed.


JUDGMENT:

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.

The trial

11 The appellant had no recollection of the accident itself and the respondent’s account was given in a police statement prepared on the day of the accident.

12 The appellant’s parents did not see the accident, but gave evidence of their observations before and immediately after it.

13 There were two eyewitnesses.

14 The first was Ms Lansley who was standing on the western side of the street somewhat to the north of where the accident occurred. Ms Lansley’s observations were recorded at 4pm on the day of the accident in a police officer’s notebook that she signed. She gave evidence at the trial seven years later and, not surprisingly, had difficulties recalling matters of detail. By then she had no actual recollection of the car colliding with the girl (Black 119). During her cross-examination, counsel for the defence tendered a signed witness statement prepared by the appellant’s solicitor in 2000.

15 Mr Hopkins was sitting in the driver’s seat of his car parked on the eastern side of Argyle Street looking south. There were two vehicles parked between him and where the appellant was standing before she moved into the path of the respondent’s vehicle. The judge considered that he had “the best view of all”. Mr Hopkins failed to attend the trial, despite having been subpoenaed. A witness statement dated 29 May 2000 prepared by the appellant’s solicitor was put into evidence by consent. The statement is typed and has numerous amendments suggesting that it was closely considered by Mr Hopkins before being signed.

16 There was a body of evidence from two accident reconstruction experts, Dr Henderson (for the appellant) and Mr Keramidas (for the respondent).

17 Each witness called at the trial was cross-examined.

The judge’s conclusions

18 The learned trial judge acknowledged the difficulties stemming from the manner in which the evidence of the respondent and Mr Hopkins was put before the court as well as the inherent uncertainties that surround lay testimony concerning matters of speed and distance in relation to a fleeting observation of an accident. There is no statement in the reasons that his Honour was assisted by reference to favourable or unfavourable impressions regarding the demeanour of the witnesses called at the trial.

19 Judge Garling summarised his conclusions in the following terms:

So, that being so, what I am satisfied of is that the defendant vehicle was travelling at between twenty-five and thirty kilometres per hour, that the defendant driver would have had a line of sight of eighteen metres, that the defendant driver’s reaction would have been triggered had she seen the child move and, if that had occurred, if she had been paying careful attention, in my view, the accident was inevitable.

It could be said that if her speed was exactly twenty-five, that there was a split second available which could have resulted in the vehicle stopping but, more likely, almost stopping before hitting the child. The defendant driver clearly did not see the child and, in my view, she should have, at some stage, before she did. But the problem that the plaintiff always had to face in this case, of course, was showing that a driver, even if they reacted immediately, could have stopped.

It seems to me that this driver simply either could not or, at the very best, would have had to have reacted immediately there was a movement to allow her to stop in time and that, when you consider all that, the way she was driving she was not negligent. The margin which was being argued was so small it was a very difficult argument for the plaintiff the way evidence turned out.

20 There is tension and ambiguity in this passage. The first sentence of the second paragraph seems to be part of the reasoning in the first paragraph. The first and third paragraphs appear to acquit the respondent of want of care, stating that the accident was inevitable. By contrast, the second paragraph states that the respondent should have seen the child before she did, but that it would still have been too late to have “stopped”. This treats causation as critical and is silent as to the possibility that the respondent could have swerved or slowed down and/or lessened the serious impact of the accident. The appellant makes separate complaint in this regard.

21 The passage must, of course, be read in conjunction with the earlier reasons. Those reasons show that the verdict proceeds from four primary findings on contested issues, each of which is challenged in the appeal. The findings were that:

(i) the respondent was travelling at between 25 and 30 kph;

(ii) the respondent’s car struck the appellant on the passenger’s side of its front;

(iii) the appellant was standing so that most of her body was obscured to the respondent by the bonnet of a four-wheel drive vehicle before she commenced walking out into the path of the respondent’s car; and

(iv) the respondent’s maximum line of sight to the appellant as she stood between the two parked cars was eighteen metres.

22 Before addressing the challenges to these particular findings I record that his Honour found that there would not have been any contributory negligence on the appellant’s part and he assessed the damages that would have been awarded had negligence. Neither party to the appeal sought to challenge these two matters save for one minor issue regarding damages that is discussed below.

Primary findings challenged

(i) The driver’s speed

23 The appellant barely pressed her case based on the respondent driving at an excessive speed. Indeed, the trial was fought with the respondent contending that her speed was in the vicinity of 30-40 kph and the appellant contending that it was much slower, perhaps even 15 kph. The appellant’s primary case was that the driver failed to keep a proper lookout and/or to respond in a reasonable way to the appellant’s presence near and later on the trafficable roadway.

24 The judge was justified in having no real confidence that pedestrians or ordinary people can assess the speed of a car accurately.

25 Nevertheless, standing alone, the testimony of the eyewitnesses would have amply justified the finding that the respondent was travelling at between 25 and 30 kph. So much is virtually common ground. Were the speed higher, there would be a serious issue as to whether it was excessive in the circumstances.

26 The respondent estimated her speed at between 30 to 40 kph (Blue 636). Ms Lansley told the police on the day that “I don’t think she was driving very fast maybe about 40 kph” (Blue 643. See also Black 118). Mr Hopkins referred to a steady flow of traffic at approximately 25 to 30 kph (Blue 269) clearly inferring that this was the respondent’s speed as well.

27 The appellant’s argument that the speed was lower based itself upon the absence of any vehicle contact injuries on her body and the expert testimony of Dr Henderson who in turn drew upon published papers about the biomechanics of pedestrian injuries published by Cesari and Isenberg. Dr Henderson drew from the two papers the conclusion that:

Whereas injuries from ground contact can occur at very low impact speeds, injuries from vehicle contact are typically non-existent or insignificant only up to an average of about 15 or 20 km/h and at higher speeds vehicle contact is highly likely to cause injury.

28 The judge was unimpressed with this evidence in light of fallacies of logic and inadequacies of data that became evident in the witness’ cross-examination. Dr Henderson could point to no more than “an average” situation. The data in the published papers did not state that contact injuries did not occur whenever a child was struck by a car travelling below 25 kph; nor did it state that contact injury was inevitable above that speed.

29 Judge Garling recognised that the articles relied upon by Dr Henderson indicated that in up to 50% of cases there was no injury at all up to 27 kph. He correctly observed:

That, of course, leaves fifty percent of cases in which up to that speed there can be injury. So it is argued that that cannot support a finding of a speed below 30 kilometres per hour if one looks at the other evidence.

30 The judge regarded Mr Hopkins as the best of the eyewitness estimates and he thought it not illogical that vehicles may travel a little more slowly than around 30-40 kph along this busy road at that time. He correctly observed that if this were just a normal assessment without the opinion of Dr Henderson, the court would readily accept that somewhere around 30 kph was the speed the respondent was driving at. His Honour appears to have given some weight to Dr Henderson’s views in concluding that the driver’s speed was between 25 and 30 kph.

31 In my view this finding is unassailable.

(ii) The point of impact

32 The judge found that the appellant was struck by the front of the respondent’s vehicle on the passenger side and that she was flung over the bonnet of the vehicle (Red 28U, 30G). These conclusions were stated as if they were uncontentious.

33 Yet the clear weight of the evidence was otherwise.

34 The respondent in her statement referred to the “small child appear[ing] to stop in front of my vehicle, and we appeared to look at each other”. Asked how far from the gutter was the child when she first saw her, she answered: “There was a car parked on the left hand side of the roadway, so she was about a car width out plus half my car”. This is a little confusing because it could mean that there was a car width between the parked car and the respondent’s car or that there was no space at all. For present purposes it is the reference to “plus half of my car” that implies that the child was halfway across the front of the car when first seen by the driver.

35 Mr Hopkins, who according to the judge had the best view of the accident, said that he observed the girl to be hit by the driver’s side of the car, the impact causing her to bend over the bonnet (Blue 270F, J).

36 Mr Hopkins’ observation that the girl took “three paces into the line of traffic” may have been intended to represent the distance to point of impact although it could well represent the extent of his uninterrupted observation of the appellant. On either basis, it does not outweigh the body of other evidence (including that of Mr Hopkins’ himself) that shows that the point of impact was on the driver’s side of the car and thus significantly to the west of where the trial judge found it was.

37 The appellant’s father, Mr Eccleston gave evidence that he, had turned his head to the left after indicating that his daughter should cross.

38 His evidence as to the time lapse between indicating it was safe to cross and the accident was quite unsatisfactory. He was adamant that the lapse was “a few minutes” while being unaware of how many seconds were in a minute. He said he saw his daughter start to move and that at that stage there was definitely nothing coming for at least a hundred metres. He did not concede that his own lookout was defective when he told the appellant to cross (Black 76, 77-9, 85-6).

39 These statements by the father cannot all be correct given that the accident happened. Either the father was wrong in one or more respects or, as he recognised was possible (Black 86), the appellant stopped after she was first seen by him moving forward from the position previously identified. On each hypothesis, the father’s evidence remains unsatisfactory and hardly meriting the judge’s description of being “clear” as regards the position where the appellant was standing when she could have been seen by the respondent (see further below).

40 The father’s evidence was, however, precise as to the point of impact. A person in the back seat of his car exclaimed that Amy had been hit and when the father looked back he saw his daughter being dragged down the road by a car, on the driver’s side, apparently because she was being dragged by the mirror or window of the car (Black 63). This evidence was unchallenged.

41 The appellant’s mother heard a thud and a screech of brakes. She rushed to where her daughter was lying, which was in the middle of the road where the lines were (Black 103).

42 Ms Lansley is recorded in the signed police officer’s notebook as stating that:

The car hit the child with its front on the driver’s side.

43 By contrast, in her 2000 witness statement she stated:

The motor vehicle appeared to impact the girl on the left hand side of the vehicle, that is the passenger side of the vehicle (I think).

44 When Ms Lansley gave evidence at trial in November 2005 she said that she had difficulty remembering the detail of an accident that had occurred so long ago (Black 114). She had no recollection of seeing the car collide with the young girl (Black 119).

45 Ms Lansley later agreed in cross-examination that her witness statement had been prepared by the appellant’s solicitor and that she signed it in 2000 (Black 125). She was not, however confronted with the passage in the witness statement that was clearly at variance with the entry in the police notebook. Her curial testimony that she had no recollection as to the car having hit the child on the driver’s side of the front (Black 120) was not further tested.

46 The trial judge said this of Ms Lansley’s evidence:

Her version in giving evidence was not quite the same as her statement and I think it fair to say that her statement is a bit more accurate than what she said in court. She was just walking on the footpath and she saw a motor vehicle impact with the girl. She did not recall any brakes being applied. She thought the motor vehicle impacted the girl on the left hand side of the vehicle, that is the passenger side of the vehicle.

47 His Honour does not refer to the parenthetical “(I think)” that appears in the 2000 statement. More significantly, he makes no reference to the signed entry in the police officer’s notebook recording Ms Lansley’s observation on the day of the accident. I do not think that this is a situation where the reasoning proceeds by reference to an express or implied endorsement of the credibility of the witness as she gave evidence in court. Quite the contrary, as regards preference for the 2000 witness statement over the evidence in court. Since, however, nothing was put to the witness to suggest the inaccuracy of her observation recorded on the day of the accident in the police officer’s notebook I regard this as the better record of this witness’ observation, a fortiori because of the testimony of the other witnesses.

48 It follows that the appellant was struck on the driver’s side of the front of the car, not on the passenger’s side.

49 I deal later with the consequence of this error in the ultimate determination that this Court must make as to negligence.

(iii) The visibility of the appellant as she stood on the roadway waiting to cross

50 The appellant submits that the known and visible presence of school children at the relevant time heightened the need for cautious driving. The judge was clearly of this view. He accepted that drivers would know that young people can do silly things and that drivers therefore have to keep a good look out in these situations.

51 The main thrust of the case on appeal, however, is that a careful driver would have reacted specifically to the presence of the child standing at or near the offside of a parked car, obviously waiting to cross, by slowing or at least covering the brake in readiness to stop. This would significantly reduce the reaction time posited by the experts (1.5 seconds) as appropriate to be added to the time required for braking from a speed in the vicinity of 25 to 30 kph.

52 The evidence of the appellant’s parents and of Mr Hopkins demonstrated that the child stood waiting to cross from well before the time that the respondent drove into the vicinity. In Mr Hopkins’ estimation, three or four vehicles could have driven past in the time he observed the child standing waiting to cross.

53 There were no vehicles in the trafficable carriageway directly ahead of the respondent that could have impeded her vision at the relevant time.

54 The car parked immediately to the north of where the appellant was standing was described as a large white four-wheeled drive. The normal width of a four-wheel drive is between 1.8m and 2m (Black 236). Any additional distance from the kerb to the nearside of the particular vehicle was not, of course, measured.

55 The judge found that all that was visible to the respondent before the appellant started to walk into the trafficable roadway was about 10 centimetres of the appellant, being the portion of her head appearing above the bonnet of the four-wheel drive (Red 33S). From this finding, he derived the conclusion that the respondent was not activated to realise that she ought to do anything to avoid an accident unless and until the child commenced to move (Red 33W). The posited eighteen metre line of sight adopted to by his Honour (see below) also proceeded from this primary fact.

56 The primary finding about the appellant’s standing position appears in two passages (Red 24, 28):

The evidence which I accept is that the plaintiff walked from the footpath onto the roadway and stopped near to the edge of the parked vehicles. That is, if you draw a line down the side of the parked vehicles, the plaintiff would have stopped just inside that line and the vehicle next to her on her right as she faced across the road was a four-wheel drive vehicle. There were other vehicles parked behind the four-wheel drive. It was from that position that the plaintiff started to cross back across the road.

That evidence is given by the plaintiff’s father and mother and also to a degree by Mr Hopkins. The plaintiff was 128 centimetres tall at the time...
....
I just want to return for a second to the position I found the plaintiff was in as there was an argument that if you took Mr Hopkin’s (sic) version it was possible that the plaintiff was not within the line of the parked cars, but slightly out of the line of the parked cars. But, having read it a number of times, I do not believe he says that. The plaintiff’s parents clearly put her in that position, that is, in the line of the parked cars. The other matter is that she was 128 centimetres tall and the evidence before me is that the four wheel drive would be about 120 centimetres in height, which would have meant that about 8-10 centimetres of her body would be protruding above that bonnet.

57 There is understandable ambiguity in a finding that the appellant was “just inside” the line of parked cars and in the rejection of a submission that she was “slightly out of the line of parked cars”. This said, the manner in which his Honour reached those findings and proceeded from them to a conclusion that the respondent at no time had the opportunity to see the whole of the appellant’s body before she started to cross is itself quite unclear. Even if no part of the appellant’s body was outside the line of parked cars it would not follow that the whole of her body except for 10cm would be obscured to the driver as she came towards the accident scene. Of course, the appellant bears the onus of establishing the primary facts grounding a conclusion of negligence.

58 The appellant challenges the findings about where she was standing, in my view successfully.

59 The appellant knew the basic rules for crossing a road (Black 6). The fact that she waited for a cue from her father as to it being safe to cross does not exclude the possibility that she would have positioned herself where she could see something of the oncoming traffic. I consider it unlikely that she would not have stood as far out as was safe to do, especially since she definitely stood for some time before crossing. This would have maximised her own line of sight and minimised the distance to be covered when she set out. Her young age obviously meant that she could have been careless for her own safety and it is clear that she depended on her father for an indication that it was safe to start crossing. But it is not lightly to be presumed that she would have stood hidden behind the bonnet if she could have safely stood right at the front offside corner of the four-wheel car.

60 The evidence establishes this hypothesis on the balance of probabilities.

61 Mr Hopkins’ signed witness statement dated 29 May 2000 (Blue 269) is a typed document of eleven paragraphs five of which are ticked and six of which are amended in handwriting, apparently by the witness and before it was signed by him. I infer that the corrected document represents the product of the witness’ careful checking.

62 In its amended form the statement relevantly says:

3. On 5 July 1998 I was sitting in a parked motor vehicle on Argyle Street, Moss Vale. I was sitting in the driver’s seat and the vehicle was parked right outside the door of a haberdashery business known as “Needles and Yarns”. [ie on the eastern side of the road, facing southwards.]...

6. At approximately 3.30pm I noticed a little girl standing on the road between two parked motor vehicles. The little girl was standing approximately two vehicles in front of me. I had a clear line of vision as I could see along the sides of the other cars because they had parked closer to the curb than me. I did not notice the girl when she was on the footpath but first noticed her when she was on the road.

7. I observed the little girl look neither left nor right before she walked out in front of the flow of vehicles. I observed the girl to be hit by the driver’s side of the car....

9. When I first observed the girl there would have been time for three or four vehicles to drive past me. I observed the girl to take three paces into the line of traffic, it was then that she was hit by the car .... The defendant had no time to apply the car’s brakes to prevent the collision.

63 As indicated, his Honour did not believe that Mr Hopkins was saying that the appellant was beyond the line of the parked cars. He therefore rejected the argument that, if you took Mr Hopkins’ version, “it was possible that the plaintiff was not within” that line.

64 With respect to his Honour, I cannot construe the statement any other way. In the third sentence of para 6 he said that he had a clear line of vision “along the sides of” the two motor vehicles parked ahead of him. He explained this on the basis that those cars had parked closer to the kerb than himself, but it is to be remembered that his vantage point was from sitting in driver’s seat of his own vehicle, not the offside extremity of that vehicle.

65 We know that the second of the two cars ahead of Mr Hopkins was a four-wheel drive. Mr Keramidas said that it is not possible to have seen the appellant through the turret of such a vehicle (Blue 316) and, in any event, one would have expected Mr Hopkins to have said that that is what he did if it had been the case. The plain reading of the statement that he had a clear line of vision along the sides of the other cars is that this was the basis of his observation of the appellant as she stood waiting to cross. It strikes me as improbable to the point of impossibility that a person in Mr Hopkins’ position, more than two car lengths back from the front of the four-wheel drive, could have observed the appellant over the top of the bonnet of the four-wheel drive. He would have had to have been a very considerable distance out from the kerb for that to have happened. He was certainly not as far out as the respondent.

66 Mr Hopkins also does not suggest that he saw only the top 10 centimetres or so of the appellant.

67 Mr Hopkins’ statement in the opening sentence of para 6 on noticing the little girl standing “between two parked motor vehicles” is entirely equivocal. It correctly locates her somewhere beyond the lines formed by the front of the four-wheel drive and the rear of the vehicle parked ahead of it. But it says nothing about where she was along the west to east projection of those lines as they notionally extended across the trafficable roadway.

68 It is difficult, if not impossible, to see how Mr Hopkins could have observed the appellant standing if she was not, at the very least, right at the offside front corner of the four-wheel drive with part of her body visible from head to toe. If the appellant was thus visible to Mr Hopkins then she must have been thus visible to the respondent, not just the top ten centimetres of her body. The respondent was much further out from the kerb side than Mr Hopkins.

69 The respondent’s expert, Mr Keramidas, agreed in effect that if Mr Hopkins’ evidence was that he could see the full height of the girl as she stood, then she was probably standing outside the line of the parked cars (Black 253-4).

70 I return to the other portion of evidence relied upon by the judge in locating the stationary appellant where he did. His Honour said that the appellant’s parents “clearly put her in that position, that is, in the line of the parked car”. In my view this overstated the effect of the parents’ evidence.

71 In chief, Mr Eccleston described the appellant’s location as “right on the edge of the, at the front of the white four-wheel drive” (Black 62). He agreed that this was just off the “trafficable surface” (Black 75), a term that was not defined by the cross-examiner. Mr Eccleston put a cross on a photograph of a vehicle parked in Argyle Street at a position that appears to be slightly to the west of the offside line of the car, but he agreed in cross-examination that the appellant would have been standing ”just to the left” of a line drawn down the offside of the four-wheel drive (Black 75-6).

72 I have already adverted to unsatisfactory aspects of the father’s evidence.

73 I also observe that the cross-examiner did not suggest to the father any discrepancy between the location of the cross he put on the photo and the oral testimony. If, as senior counsel for the respondent submitted in the appeal, the oral testimony was a retreat from the mark on the photo it was not squarely flagged as such at the trial.

74 The appellant’s mother was sitting on the front passenger side of the parked car. She said that the appellant stood between two cars waiting to come back across the road. She said that no part of the child’s body was beyond the edge of the car. Asked how close the appellant was to the edge of the car, she answered: “Well she was actually at – sort of the edge of the car waiting for us to give her – to consent to come across the road” (Black 102).

75 Neither parent’s evidence established that the appellant was only visible to the respondent over the top of the bonnet of the four-wheel drive. Furthermore, the parents were not in as good a position as Mr Hopkins to align the appellant with the offside of the cars parked across the road from them.

76 In my view, the finding that, until the appellant started to walk, her body was partially obscured to the respondent by the bonnet of the four-wheel drive must be rejected. This also has significant consequences for the measurement of the available sight line that his Honour adopted.

(iv) The length of the respondent’s line of sight

77 Accepting the evidence of the respondent’s witness Mr Keramidas, the judge found that the line of sight was 18m.

78 There had been a dispute as to the maximum line of sight available to the respondent. Some of the mathematics was ultimately agreed between the experts. Unfortunately, differences remained and there is force in the appellant’s criticism that the reasoning does not fully explain the process whereby Mr Keramidas was preferred or the calculations as to stopping times derived from his conclusion.

79 The judge concluded that there were no vehicles directly in front of the respondent (ie in the trafficable roadway) that could have obstructed her view of the appellant. This particular finding and the reasons on which it is based (Red 32-3) are not challenged in the appeal. The respondent had an unobstructed view of the appellant at least after she moved beyond the line of parked cars.

80 The second, and more critical, aspect of the line of sight inquiry concerned the respondent’s capacity to have seen the appellant when she was standing “between” the four-wheel drive vehicle and the one parked to its south. We do not know the type or colour of the latter vehicle which formed a background to the appellant wherever she was standing. The appellant has dark hair.

81 The line of sight at which the appellant might first have been observed by a driver following the respondent’s southerly route depends in the final analysis upon the dimensions and contours of the road, the location of cars parked on it, the position of the respondent’s vehicle on the roadway as she approached and the position of the appellant as she stood waiting to cross back to her father.

82 This multi-factorial inquiry is inevitably imprecise, but it formed the factual basis of the expert evidence given as to sight lines and the time it should have taken the respondent to brake and/or swerve had she been keeping a proper lookout as alleged.

83 The respondent’s expert Mr Keramidas prepared scaled sight-line diagrams showing the sweep of the road and measuring the distance from various positions “between” (my words) the two parked cars and the assumed route taken by the respondent. He assumed that the appellant stood 90cm into an assumed 2m gap between the two parked cars.

84 The diagram shows Argyle Street curving slightly to the east as one moves from north to south. This curvature creates a view obstruction for southbound vehicles.

85 A critical aspect of the eighteen metre measurement derived by Mr Keramidas was the fact that he located the appellant just to the east of offside line of the parked cars and (importantly) standing close enough to the four-wheel drive so that she could only be visible to a driver like the respondent looking over the bonnet of that vehicle. (See also Dr Henderson at Black 157.) This, as indicated, was the position established by the trial judge in the primary finding with which I have already disagreed.

86 According to Mr Keramidas’ report, a person of the appellant’s height standing 1.5m out from the eastern kerbline would have been visible to the respondent from 10.7m assuming she drove down the centre of the trafficable roadway as distinct from taking an available wider route. If the appellant were standing 2m from the eastern kerbline on the “edge of parked cars” she would have been visible to the respondent for 22.7m. If she were standing 2.5m out she would have been visible for 34.5m (Blue 316. See also photograph of sight line at 2.5m (Blue 329).)

87 Some of Mr Keramidas’ assumptions were challenged in cross-examination and he made certain concessions and adjustments in his oral evidence. But his conclusion as to an 18m sight line continued to be based on the assumption that the appellant’s body would have been partially obscured by the four-wheel drive. On top of that, the furthest out that he assumed the appellant to be standing was between 1.5m and 2m from the kerbline.

88 Mr Keramidas also assumed that the respondent drove down the centre of the trafficable roadway, along a blue line depicted in his plans. This line allowed what appears to be almost a car width between the offside of the car and the broken centre line of the street. Given the curvature of the street at this location and the distinct possibility that the driver may have driven closer to the centre of the roadway than assumed, then the sightline calculations become even more problematical. (The position of the appellant as she lay injured on the road was the centre of the road.)

89 The appellant was described by Mr Keramidas as “basically half beyond the car and half behind the car”, but with no part of her body “impeded”(sic) beyond the line of parked cars (Black 250-251). In truth, the Keramidas’ calculations must have located the appellant inside the offside line of the four-wheel drive.

90 Mr Keramidas offered conclusions as to sight lines and stopping times in relation to a “trigger point” being 10-30cm of the appellant’s head appearing above the bonnet of the four-wheel drive (see Blue 316, Black 236D, 239N, 239X, 269M). No part of the child’s body extended beyond the line of parked cars on those calculations (Black 249).

91 Mr Keramidas explained his ultimate conclusion about an 18m sightline on the basis that he assumed the appellant was standing somewhere between 1.5m and 2m from the kerbline. He gave the following evidence (Black 237):

Q. And if she was somewhere between the two it’s just a mathematical calculation isn’t it to what the line of sight is?
A. That’s correct, yes.

Q. Can you do that for us, the halfway point?
A. Yes, the halfway point in this case could be something in the region of 16 to 17 metres and if she’s a little bit forward of that up to about 18 or so.

Q. And a little bit less?
A. Yes exactly.

92 The judge accepted Mr Keramidas’ measurements and his derived estimation that the line of sight was 18m.

93 As indicated below, his Honour also adopted the expert’s broad conclusions on the ultimate issue in the case that stemmed from this calculation. The judge did so without spelling out the mathematical consequences of an 18 metre sight line upon stopping time calculations or his calculations as to the time it took the appellant to walk from behind the parked car to the point of impact. Submissions in the appeal revealed understandable confusion and points of significant disagreement as to the mathematics applicable to Mr Keramidas’ 18m when applied to a speed between 25 and 30 kph.

94 A distance of 2m from the kerbline would in all probability be less than the posited width of a four-wheel drive (1.8 to 2m) and the likely additional space between the kerb and the nearside of the parked car. And the assumed masking of the appellant by the bonnet of that car was contrary to the facts as I have found them.

95 Mr Keramidas expressed himself in opaque and conclusory terms when he gave the following evidence (Black 239P, 240H):

A. At 30 to 40 kilometres per hour there would be no prospect of impact being avoided. At 25 it becomes marginal and the basis for that is considering the total stopping distance which is a combination of the one and a half second reaction time and the braking distance from the various speeds. And I’m sorry, this also assumes that the visibility distance is at about 18 metres.

...

So from my perspective the key is, even though the 18 metres itself as a physical view distance, excluding any vehicles in front of her, means that she would have to be travelling at 25 or below in order to avoid the impact. She would need to have perceived that the child was actually there from a driving forward situation. And also, she would need to have at the instant of seeing the child made a decision during that one and half second perception reaction time that she needs to apply emergency braking to stop.

96 On this data, Mr Keramidas considered the accident inevitable at what he considered to be a practical speed range (Black 241X).

97 The trial judge expressed his conclusions in terms similar to those used by Mr Keramidas.

98 The expert’s and the judge’s conclusions are falsified because the data on which they were based was itself falsified.

Verdict for defendant cannot stand on the findings in the District Court.

99 Because of the material errors I have identified the verdict for the defendant cannot stand on the bases provided by the District Court. But has the appellant established negligence?

Was negligence established?

100 The overturning of some of the findings below does not in itself establish negligence. This Court has to grapple with the corrected data. If that data is unclear in significant respects there may need to be a new trial.

101 A number of cases have addressed issues of negligence involving driving in an area where the presence of children is known or ought to be known. There are statements are about a “greater standard of care and caution” being required in those circumstances (see eg Tobin v Worland [2005] NSWCA 188). Of course, the standard remains conceptually that of reasonable care, but what is reasonable must be decided in the particular context. The issue remains one of fact.

102 Scientific accuracy is unattainable in this matter because key factors are incapable of exact proof. The law requires no more or less than satisfaction on the balance of probabilities.

103 As indicated, the trial judge restricted himself to the question whether the driver was negligent in not stopping without striking the appellant (Red 28-9, 35Q). Yet the appellant’s claim went further than this. Causative negligence is most easily established on the basis of failure to swerve and/or brake earlier and I shall therefore concentrate on this scenario. It will be seen that I also conclude that the driver ought to have stopped and that she could have done so in all the circumstances.

104 The falsification of the primary data assumed by Mr Keramidas destroys the 18m line of sight calculation he derived from it. The distance must be adjusted upwards, although by exactly how much cannot clearly be established, in part because the mathematics of Mr Keramidas’ conclusions as to stopping times remains undisclosed. The calculations of stopping times were not clearly exposed in the testimony of the experts. And there was objection in this Court as to the propriety of us looking at the tables in Leslie & Britts, Motor Vehicle Law.

105 The main adjustment needing to be factored into Mr Keramidas’ calculations and conclusions is locating the standing child closer to beyond the line of the offside of the parked car than was allowed for by him, or even beyond it. The appellant stood in a position where the full length of her body was visible to Mr Hopkins. Indeed, the respondent had an even better opportunity to see her because she was further out on the road than Mr Hopkins. She had a better sight line than he did at that distance from the accident scene. It is of course necessary for the appellant to establish that the respondent’s line of sight extended further given the need for her to have had adequate opportunity to brake and/or swerve.

106 The necessary adjustment based on the location of the standing child has a dual impact on the calculations of the experts. It would extend the driver’s line of sight and it would marginally reduce the assumed 1.5 seconds reaction time, given that the presence of the child waiting to cross ought at least to have led the driver to cover her brakes in case the child ran out.

107 Dr Henderson said that there was certainly sufficient distance to stop to avoid the collision or strike the appellant if the respondent was driving at about 30 kph, if there was a sight distance of 25m and over and if the child had taken between two and three seconds to get to where she was before being hit (Black 161T). I do not understand Mr Keramidas to have suggested otherwise.

108 Mr Keramidas said that the driver would need 17.2m to come to a stop from a speed of 30 kph (Black 255, 256), allowing for a 1.5 seconds reaction time. He expressed himself in terms of the matter being “too close to call” if the assumed speed were 25 kph and the line of sight were 18m.

109 Mr Keramidas conceded that his 18m line of sight would extend to 25m if the stationary appellant was located 2m from the eastern kerbline, a position he described as “basically half beyond the car and half behind the car. Same as Dr Henderson” (Black 251).

110 In my view, Mr Hopkins’ evidence placed the appellant further out from the kerb than 2m and at a position not accurately described as “half beyond the car and half behind the car”. For the appellant to have been visible to Mr Hopkins, she must have been standing referable to the four-wheel drive in a position that could not be described as “half behind” that vehicle. It is more likely than not that the four-wheel drive vehicle would have been parked so that its nearside wheels would have been slightly out from the kerb itself.

111 Mr Keramidas calculated the line of sight available to the respondent if the appellant was standing 2.5m out from the kerb. It was 34.5m, a distance that would require a slight adjustment upwards if in fact the vehicle were travelling closer to the centre line of the road than assumed in the witness’ plan (Blue 344). The 2.5m distance may or may not have been further from the kerb than the offside of the four-wheel drive vehicle whose estimated width was between 1.8m and 2m and which was probably parked some little distance out from the kerb. But even if one moved back to a position 2m from the kerb, again involving the child’s body not being obscured by the bonnet, the estimated Keramidas’ sightline was 25m.

112 A car travelling at a constant speed of 25 kph covers 18m in about 2.6 seconds. At a constant speed of 30 kph the time is about 2.2 seconds.

113 In my view, and in light of the adjusted data as to sight lines, there are several pointers which reinforce a conclusion that negligence was established, even allowing for necessary elements of imprecision and not overlooking where the onus of proof lies.

114 If, as I have held, the appellant was standing at or beyond the line of the parked cars so that the whole or at least the full length of her body was visible to a motorist driving south then this ought to have triggered extra precautions once the driver could see her standing there. A child standing in that position must be indicating to a high degree of probability that her intention is to cross the road. A careful driver would not necessarily be expected to brake upon such a stimulus, but in my view, he or she ought to take the foot off the accelerator and cover the brakes in readiness for the possibility that the child might dash out. Drivers and pedestrians share the roadway.

115 The respondent did not react in this way. Had she done so, something less than 1.5 seconds is allowable for a reasonable reaction time to the further stimulus of the child starting to move.

116 If, as I have held, the appellant was struck on the driver’s side of the front of the respondent’s car, then the assessment of breach of duty must proceed on the basis that the driver had a significantly greater time to see the child as she walked across the roadway than allowed for by the trial judge.

117 There must have been some distance between the line of parked cars and the nearside of the respondent’s car. Given that the road splays and curves to the left and given the eventual position of the injured child near the marked centre of the road it seems likely that the gap was not an inconsiderable one. Whatever it was, the appellant must have crossed it and more than half of the front of the respondent’s car before being struck – and crossed it at a walking pace.

118 The experts discussed the walking speed of a child of the appellant’s age. To arrive at the point of contact she must have walked at least two thirds of the width of the car, plus the space between the parked car and the nearside of the respondent’s car. That space depends on how far out the respondent was driving. Mr Keramidas assumed she was approximately one car width out (Blue 344) and this may be what the respondent was saying when she referred to the child being “about a car width out plus half my car” before she was spotted. Mr Keramidas conceded that the appellant could have been further out still. As indicated, there are about three car widths available space between the parked cars and the broken centre line.

119 Mr Keramidas thought that it would have taken the appellant between 1.5 and three seconds to have walked out to the point of impact (Black 234-5). It appears that this calculation was done on the basis that the child started from the position within the line of cars that the expert also used for his line of sight calculations. It is not at all clear as to his assumed point of impact on the vehicle, which I have held to be at the driver’s side of the front of the respondent’s car. The vehicle itself was also assumed to be in the middle of the trafficable carriageway. The time difference is marginal, but I think it probable that around three seconds elapsed between the appellant commencing to walk and her being struck, bearing in mind that on the respondent’s statement there was a time when “the small child appeared to stop in front of my vehicle, and we appeared to look at each other”.

120 Whatever the calculation in terms of seconds for the appellant to have walked that far out, the significant fact is that she almost got beyond the respondent’s car. Mr Keramidas clearly saw the matter as “too close to call” if the assumed speed were 25 kph. “She either would’ve just hit or just missed” (Black 256). This too was the judge’s conclusion. The same finding, turned on its head, shows that (at that speed) the judge’s error about the point of impact and his failure to address the alternative case based on failure to swerve were significant. In my opinion, negligence on this basis was established if the speed were 25 kph.

121 I am also of the view that negligence was established if the respondent was driving at the higher speed of 30 kph. The respondent had time to slow, swerve and miss. It seems probable that she also had time to come to a complete halt. That is because the probabilities indicate that the available sight line was at least 25m. As indicated above that distance allowed a sufficient time to stop to a driver travelling at that speed. A fortiori, time to slow and swerve.

Disposition

122 For these reasons the appeal must be allowed and a verdict entered in favour of the appellant.

123 The trial judge awarded damages at $579,848 made up as follows:

(a) Non Economic Loss (45% MEC) $ 161,550.00
(b) Past Out of Pocket Expenses $ 11,798.00
(c) Future Out of Pocket Expenses $ 25,000.00
(d) Future Economic Loss $ 350,000.00
(e) Loss of Superannuation $ 31,500.00
$ 579,848.00

124 No pre-judgment interest was allowed, presumably because there was no basis for displacing s73 of the Motor Accidents Act 1998.

125 The parties agree that cost of funds arrangement should be allowed.

126 The one matter of remaining disagreement concerns interest.

127 The appellant’s disputed claim to interest appears to turn upon whether judgment is entered as at the present or as at the date when it ought to have been entered in the appellant’s favour at trial.

128 The usual practice in these matters is for this Court to give the judgment that ought to have been entered in the Court below. Interest thereafter is due as interest on a judgment and its calculation depends on when the judgment is satisfied (Civil Procedure Act, s101). No reason to depart from this practice has been advanced.

129 The parties agree that, absent an award of pre-judgment interest, the costs of fund management are $133,106. When this sum is added to the damages assessed below, the verdict sum becomes $712,954.

130 The following orders should be made:

1. Appeal allowed.

2. Set aside verdict for the defendant.

3. In lieu, enter a verdict for the plaintiff in the sum of $712,954 to take effect from 20 December 2005.

4. Respondent to pay appellant’s costs in the District Court and this Court.

5. Respondent to have a certificate under the Suitor’s Fund Act 1951 if qualified.

131 BEAZLEY JA: I agree with Mason P.

132 BRYSON JA: I agree with Mason P.

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LAST UPDATED: 26 February 2007