Derrick v Cheung (by her next friend Hong) S151/2000 [2001] HCATrans 120 (28 March 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S151 of 2000

B e t w e e n -

ROSALIE DERRICK

Appellant

and

WAH YE ROSANNIE CHEUNG (By her next friend XIE RUI HONG)

Respondent

GLEESON CJ

GAUDRON J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 MARCH 2001, AT 10.20 AM

Copyright in the High Court of Australia

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MS P.J. GORMLY, for the appellant. (instructed by Henry Davis York)

MR S.L. WALMSLEY, SC: May it please the Court, I appear with my learned friend, MR P.C. SEE, for the respondent. (instructed by Beston Macken McManis)

GLEESON CJ: Yes, Mr Hislop.

MR HISLOP: Your Honours will see that this is an appeal in relation to a motor vehicle accident that concerned a young child of 21 months. The facts are quite simple in that the child had crossed Victoria Avenue with her mother on Saturday about 9 o'clock, gone into a friend's home and then whilst the ladies were distracted in some way, the child had left the premises, crossed the footpath and then moved or ran between two parked motor vehicles on the northern kerb of the road and directly into the path of an oncoming vehicle driven by the defendant.

The defendant was proceeding in an easterly directly in Victoria Avenue, the northern kerb from which the child came was the kerb nearest to her and the accident occurred almost instantaneously, with the emergence of the child from behind the parked vehicle. The evidence was, and it was accepted by his Honour, that the driver had no opportunity to see the child at any stage until it emerged.

GLEESON CJ: Were cars parked, as it were, almost bumper to bumper along the kerb?

MR HISLOP: No, not almost bumper to bumper, but perhaps I can assist the Court in that regard, as there were photographs which formed part of the evidentiary materials. We have furnished the Court with a supplementary appeal book. It contains the same material as the appeal book proper but the photographs in that were less than clear and what we have had reproduced are colour photographs.

So if I might take the Court to the supplementary book rather than the appeal book itself for this purpose. If I might take the Court to page 4 of the supplementary book, exhibit D, the northern kerb from which the child came is the kerb illustrated in the photograph. The silver vehicle is the vehicle in front of which she emerged on to the road.

GLEESON CJ: When were these photographs taken?

MR HISLOP: These were photographs which I think were taken by the police on the day, your Honour. The marking that you will see, being a green cross, was the evidence of the police constable who investigated the accident as to where she understood the point of impact occurred between the vehicle and the child. The white markings which the Court will see to the right of the green cross were markings made by the police when they investigated the matter. The white markings are used apparently to enable the camera to pick up the skid mark which commenced just before the green cross and continued on for a distance which was measured at 10.5 metres. That is a skid mark made by the right wheel or tyre of the vehicle.

So that one then has the image from that that the oncoming vehicle was passing in a normal position beside the parked car, was confronted with an emergency situation when the child suddenly emerged and braked and pulled to the right. Now, his Honour found that her reactions were appropriate and indeed also found that she was travelling at a speed of 45 to 50 kilometres per hour and the speed limit in the street was 60. The speed of 45 to 50 coincided with the speed which was being travelled by other vehicles in what was described as a stream of traffic in each direction on Victoria Avenue on that occasion.

GLEESON CJ: I am interested in the volume of traffic on that occasion.

MR HISLOP: It was described as a stream of traffic and there was a vehicle directly in front of the defendant's vehicle, at the time. There were vehicles coming the other way. The driver of the vehicle immediately in front of the defendant's vehicle gave evidence that she was - and his Honour found - an appropriate distance in front of the defendant's vehicle. The evidence of Mr Moye, who was the driver of the vehicle coming in the opposite direction, was that he was travelling at about the same speed and, again, that there was traffic.

GLEESON CJ: What was behind the defendant's vehicle?

MR HISLOP: I do not recall that the evidence specifies precisely that but the evidence was that it was a stream of traffic and his Honour so found, as a fact.

KIRBY J: Is there a school or are there any other public facilities in the area?

MR HISLOP: There was no evidence of that, your Honour, and it was a Saturday morning at about 9 am. His Honour found that there was negligence on the part of the defendant and the only submission that was put to him as establishing negligence was the proposition that his speed of 45 to 50 kilometres per hour was an excessive speed. His Honour concluded - - -

GLEESON CJ: I thought the submission that was put to him is that that is recorded on page 96 at line 50. Is that right?

MR HISLOP: Yes.

GLEESON CJ: Is that the submission that he accepted?

MR HISLOP: He accepted that the speed was excessive and that reasonable care required her to drive at a speed lowered by a few kilometres per hour.

GLEESON CJ: But was that on the basis that a speed is excessive if it is beyond your power to stop in time if a child suddenly appears from in front of a parked car?

MR HISLOP: That seems to have been the basis which his Honour concluded although his decision is perhaps more clearly stated at page 104 at about line 35.

GLEESON CJ: I was only wondering how many people drive at such a speed that it is within their power to stop in time if a child suddenly appears from in front of a parked car.

MR HISLOP: We submit that that is the whole weakness of his Honour's finding, or a major weakness in it. It is just totally unreal to impose such a duty in circumstances whereas, here, there was no evidence of pedestrian movement on the footpath at the time. It was accepted the child could not be seen until she emerged from beyond the line of the parked vehicle.

In our submission, in order for one to drive at a speed that would avoid impacting a child in that situation one would be reduced to 5 or 10 kilometres per hour and even then it is likely an impact would not be avoided because it would depend on the random factor of how close the passing vehicle was to the front of the parked car when the child ran out.

In this case the evidence was that the impact was almost instantaneous with the child running out so that, in fact, in this case there could have been no opportunity if the vehicle was being driven a few kilometres per hour less than 45 to 50 it still would not have enabled the accident to have been avoided. It still would have occurred and there is, in our submission, no basis upon which it can be said that negligence is shown in this case.

There was absolutely nothing in the streetscape, in our submission, that was unusual and if we could just briefly point to those. The road itself was straight. It was in good condition. The weather was fine. There were parked cars on each side and there were houses, a normal streetscape, one would think, in suburban Sydney. The accident was at 9 o'clock on a Saturday in December but there was no evidence of any particular pedestrian activity in the area; certainly no evidence of anything that would have put the driver on notice of the events which did, in fact, occur; certainly no reason to expect that a very small child, such as the plaintiff, would be unaccompanied and would run on to this road, which was carrying a reasonable stream of traffic at the time.

We submit there was nothing in the manner of driving. The speed limit was 60. The speed limits are those which are set down by the appropriate authorities to indicate the speed which is safe to travel upon the road in good conditions.

The conditions here were good. The driver was travelling at a speed of 45 to 50, which is substantially below the speed limit. It was a speed that on the evidence was considered appropriate by the other drivers, and also by the police officer, who had had some seven years experience in the area, and who indicated that was a usual speed to travel along that particular road. So that whilst general practice of prudent persons is not necessarily conclusive, it certainly is an important evidentiary factor, we would submit, to indicate that what was being done by this lady conformed to reasonable care on the part of the driver in that situation.

GLEESON CJ: Was there any evidence in the case as to what kind of a speed would satisfy the requirement or the standard referred to in that submission at the bottom of page 96? That is to say, what kind of a speed would you need to be travelling in order that it would be within your power to stop in time if a child suddenly appears from in front of a parked car when you are alongside that car?

MR HISLOP: There is no evidence of that, your Honour. An expert was qualified on behalf of the plaintiff, and two reports of his are contained in the papers. He specifically did not comment upon that. He confined his expert opinion to what speed the defendant's vehicle was travelling at having regard to the skid mark of 10.5 meters. So he says nothing about that question which your Honour has raised.

The other expert who was called on behalf of the defendant gave clear evidence in his report that at 45 kilometres per hour, the accident was, in effect, inevitable; it could not have been avoided. He did not go on to explore at what speed it could have been avoided, so there was no evidence on that.

HAYNE J: Did the expert give any evidence about reaction times and distance travelled over reaction time?

MR HISLOP: In his report, there was some evidence to that effect, your Honour. He estimated that the reaction time of the lady in the circumstance of this case was about 1.3 seconds; that that was a good reaction time indicated she was keeping an appropriate lookout and the like.

HAYNE J: And at 50 k's an hour how far do you travel in that time?

MR HISLOP: I am not sure that he actually gave a distance at 50, but the tables indicate that at 50 kilometres per hour one is travelling at 13.9 metres per second.

KIRBY J: You are treating this as if this is a trial. This is an appeal, and it was an appeal before the Court of Appeal, so error has to be shown.

MR HISLOP: Correct, your Honour.

KIRBY J: The Court of Appeal appear to have been influenced by Justice Mahoney's judgment in Stocks v Baldwin.

MR HISLOP: Yes.

KIRBY J: Essentially they said you have to look at weighing up all the considerations. What do you say is the error that the Court of Appeal made that we ought to correct?

MR HISLOP: We say that there was no evidence of negligence and, to put it more precisely, we would say that the proper principle is that drivers are under no duty to conduct themselves as if an extremely remote possibility was about to crystallise. You can even go further - - -

KIRBY J: Justice Mahoney would have sat in a lot of cases like this. It is unlikely that his Honour would have assumed differently. It is some time since I have read what was said there, but do you challenge anything that Justice Mahoney said or do you just say that the Court of Appeal misunderstood it or misapplied it?

MR HISLOP: Well, what the Court of Appeal did - and this is the essence of our complaint in relation to the Court of Appeal - is that at page 114 of the appeal book, Justices Stein and Fitzgerald, who formed the majority, quoted passages from Mr Justice Mahoney's decision and then at 25 on page 114, they said:

It is questionable whether the driving standards required by the statements in Stocks v Baldwin are compatible with current driving practice in Sydney and its environs, or indeed always practical in the traffic conditions which exist. However that might be, they often do not correspond with the driving habits of many Sydney drivers.

It does not necessarily follow that they are a counsel of excessive caution or otherwise require an unreasonable standard of care. The circumstance that the exigencies of movement in and around the city cause many to drive too fast for the prevailing conditions might make such speed "reasonable" in one sense but does not mean it is not a breach of duty to other road users.

Accidents such as the present involves special difficulties. Theoretically, a pedestrian might run out into the traffic at any point at any time. A driver might have no opportunity to avoid a collision.

That, we say is exactly this case -

However, the slower the vehicle, the greater the opportunity that exists. Nevertheless, travelling - - -

KIRBY J: Just pause there. The logic of that is that everybody should crawl along the road like a snail. That itself creates dangers, I suppose.

MR HISLOP: It does, it does, indeed.

GLEESON CJ: Dangers and pressure from behind.

MR HISLOP: Of course.

GLEESON CJ: They used to say in Sydney that if you were allowed one and a half car lengths between your car and the car in front of you, what you would end up with is one and half cars between your car and the car in front of you.

MR HISLOP: Well, that highlights it. You have the risk of someone running into the back of your car, particularly if you are supposed to prop every time you see a bush or something that might block your vision of people on the footpath, as his Honour seems to have suggested. But you also, if you are travelling unduly slowly, you will have vehicles making rash overtaking manoeuvres and the rest, and that is acknowledged by the justices:

Nevertheless, travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable.

We say that is certainly the case here. Then they say:

Indeed, to do otherwise would often create risks.

They say:

There is no reason to doubt that the trial judge appreciated such considerations or the need to take all surrounding circumstances into account. As his Honour said, his decision was reached "after some hesitation". Another judge might have reached a different conclusion, despite the sympathy which the plight of the respondent and her family naturally attracts. Certainly, the appellant does not bear any moral, as distinct from legal, responsibility for what occurred.

However, we are not persuaded that this is a case for appellate intervention. As Mahoney P acknowledged in Stocks v Baldwin, the determination of whether there was a breach of the duty of care is not determined by a `syllogistic process from facts to conclusion'. Rather, it involves making value judgments, as referred to by Mason J in Shirt v Wyong Shire Council.

They dismissed the appeal.

KIRBY J: Now, this was an appeal to the Court of Appeal and, therefore, by way of rehearing. Was there any factor in the evidence that was one that should cause the Court of Appeal to be cautious giving deference to the trial judge's assessment of witnesses, or consideration of the evidence would not have been great in bulk, it would have simply been relatively rudimentary evidence.

MR HISLOP: Yes. Indeed, the evidence of the parties appears to have been accepted by his Honour. It was not a case of there being any conflict really on the evidence.

KIRBY J: It does seem that the Court of Appeal's approach has been, "Well, we might have reached a different view ourselves but no error has been shown in the primary judge's decision".

MR HISLOP: Yes, that is - - -

HAYNE J: Were they approaching this as a question of law, a question of fact, a mixed question of law and fact? What was the exercise they were engaging in? In particular, what was the relevance of what was said in Stocks v Baldwin?

MR HISLOP: Our submission is it would have no relevance and that what the court had to do, it cannot just simply shrug off what we would submit is the responsibilities of an intermediate appellate court to properly consider the decision below by simply saying, "It's a value judgment and that's the end of it. We don't have to go any further".

GAUDRON J: Can I ask an old-fashioned question. What was the breach that was particularised?

MR HISLOP: A number of breaches were particularised in the - - -

GAUDRON J: Is the question in the end not whether the evidence would support a finding of breach as particularised?

MR HISLOP: Yes, your Honour.

GLEESON CJ: Was the breach as submitted that on the bottom of page 96, line 50?

MR HISLOP: Yes, the speed, and that was the only breach that was relied upon.

GLEESON CJ: But, according to what appears at the bottom of page 96, the allegation of negligence was a negligence in driving:

at such a speed that it was beyond her power to stop in time if a child suddenly appeared from in front of one of the parked cars.

MR HISLOP: Yes, your Honour, which I foreshortened by saying "speed".

GAUDRON J: Then that really is a combination of two things. It asserts, I should have thought, a duty of care to drive in such a way that you can stop in time if a child suddenly appears.

MR HISLOP: Yes.

KIRBY J: If that became the general rule on the road, there would be a lot of frustrated drivers round where I live.

MR HISLOP: Yes, precisely. It is for that reason we say that the Court of Appeal failed to properly analyse the matter.

GLEESON CJ: I would just like to take you back to page 115, lines 30 to 35, that comment about the appellant's moral responsibility. If your careless driving results in serious injury to a little child, why do you not carry moral responsibility?

MR HISLOP: One would, and one would assume that this defendant, with findings like this made against her, would certainly feel there had been a moral judgment passed upon her. It would be a natural thing to consider. If a court finds that one's behaviour is negligent and causes injury, one would carry the other.

KIRBY J: Would she really or would she just say, "Well, the judges here have taken a benevolent view of the law of negligence as they have done so many times and this is really not a matter that concerns me. It concerns my insurance company."?

MR HISLOP: I doubt that she would be much aware of what approach the courts might have taken in other cases, your Honour. She would see it as a personal matter for herself.

CALLINAN J: She might well have been shocked and devastated. Shocked by what the court did and devastated by the finding.

MR HISLOP: Yes.

KIRBY J: Well, I am not too sure about that. She might have thought if they had found the other way, this little girl, who has been very seriously injured, is going to get nothing - - -

GLEESON CJ: We do not know what she might have though but I was interested in what the judges in the majority were thinking when they made that distinction.

KIRBY J: I think your explanation is probably the best one. They were mollifying it and telling her, "Do not worry too much about this. We are not saying you are morally responsible, we are just saying we do not find error in a finding that you are legally responsible".

MR HISLOP: Yes, they are saying, "Do not worry, you are not at fault, despite the fact we find you are at fault".

GAUDRON J: Do you claim that the error is in adopting the duty of care that would be taken from the bottom of page 96?

MR HISLOP: Yes, your Honour.

GAUDRON J: Yes.

HAYNE J: The duty or the standard?

MR HISLOP: Well, the standard, I suppose, because every driver owes a duty.

GLEESON CJ: Content of the duty.

GAUDRON J: Yes.

MR HISLOP: So, it is standard rather than duty. The other matter of complaint that we make in relation to the Court of Appeal is that they do not appear to have considered at all the question of causation. In a sense, it is part and parcel of the same, in one sense, but the judge considered causation separately and the Court of Appeal makes no comment at all about that and one assumes, for that reason, they did not consider it.

KIRBY J: Was it argued before their Honours? Does Justice Davies deal with it? He does not say, "Well, even if she had been driving a bit slower, you still could not stop hitting a little girl who runs out between parked cars". I do not remember reading that in his Honour's reasons.

MR HISLOP: No, he, of course, Justice Davies, considered that what occurred was not reasonably foreseeable, which certainly highlights the extremely remote possibility which crystallised in this case and which - - -

KIRBY J: But that is the first argument. You are now raising the second argument and you are complaining that none of the judges really dealt with it.

MR HISLOP: Yes.

KIRBY J: Are we sure that was argued before the Court of Appeal?

MR HISLOP: Your Honour, I cannot give you that assurance as I did not appear in it but one would, I think, reasonably infer, the matter having been dealt with by the trial judge and the matter being so obviously relevant, that it would have been the subject of submissions being made, and, of course, to get back to what I perhaps said before, how is one to judge what these few kilometres per hour that the trial judge thought made all the difference, how is one in any real and practical sense to judge what is the appropriate speed and then where is the evidence says that that speed would have avoided the collision at all?

Indeed, because of the evidence of the simultaneous occurrence of the impact with the child emerging from in front of the vehicle, it is, in our submission, quite clear that a speed a few kilometres less than even the 45 kilometres per hour would not have avoided this accident. So that, in our submission, overall, in the end one has to look at the matter and reach a decision that reflects reality and commonsense.

KIRBY J: Is that argument put on the basis that in order to be able to stop within, effectively, the length of a car, being the car from which the small girl is posited as emerging, you have to be travelling at, say, 10 kilometres an hour, or 5 kilometres. I do not know what it is. What is it? Do the tables reveal that?

MR HISLOP: The tables do not reveal that, your Honour, but one can - - -

KIRBY J: Is there not a table, as I dimly recall it, of the speed you have to be travelling at to, as it were, stop within, say, 4 metres?

MR HISLOP: At 10 kilometres per hour, your Honour, the tables indicate that the average stopping distance is 3.4 metres.

KIRBY J: So, if it is just a little bit more than that you are really requiring traffic, on this hypothesis, to be travelling at, say, 15 kilometres an hour?

MR HISLOP: Yes.

KIRBY J: Which is very unrealistic. Would you tell me what is the statutory basis of the speed distances that are set? Presumably, they are done under the motor traffic regulations. Are they done for safety reasons or for other reasons?

MR HISLOP: Is your Honour talking about speed limits?

KIRBY J: Maximum speed limits in particular areas.

MR HISLOP: Your Honour, I am unable to - - -

HAYNE J: Are they done for revenue raising?

MR HISLOP: I hear a tinge of bitterness, your Honour, but it would seem to - momentarily. In our submission it is perhaps too harsh a judgment to say they are done for the purposes of revenue raising. We would submit that their purpose is to indicate an appropriate safe speed in the area and certainly a speed which in ordinary conditions would be regarded as reasonable.

GLEESON CJ: And, so, alongside many school playgrounds in Sydney now the speed limit is reduced to 40 kilometres an hour.

MR HISLOP: Yes, your Honour.

GLEESON CJ: And, there are signs on the back of buses that require drivers to reduce their speed even further when the buses are stopped in an area where children might be getting on and off buses.

MR HISLOP: Yes.

GLEESON CJ: There is quite an elaborate system of limits regulating speed where children might be in danger.

MR HISLOP: Yes.

GLEESON CJ: At the bottom of page 105 and the top of page 106 there is an inference drawn by the trial judge.

MR HISLOP: Yes.

GLEESON CJ: I would just like to understand that process of reasoning. He says:

Since the portion of the car which struck the plaintiff was the near side headlight and before the moment of impact the car was skidding to the right, it is open to me to infer -

something. I just have not quite followed that:

Since the portion of the car which struck the plaintiff was the near side headlight and before the moment of impact -

that is, presumably in between the time she saw the child and the time she hit her -

the car was skidding to the right, it is open to me to infer that if the defendant's speed had been slower by a few kilometres per hour, she would have been able to -

avoid the impact.

MR HISLOP: Yes. That is what his Honour says.

GLEESON CJ: And he then seems to refer to a case as authority for the proposition that inference is open.

MR HISLOP: He does and in doing so, your Honour, he totally misunderstands the factual situation in that case. The case to which his Honour refers is Stewart v Carnell. That was a case where a pedestrian was crossing the road from the driver's right-hand side to the driver's left-hand side. He passed across the front of the vehicle and was struck by the left-hand side of that vehicle. The court in Stewart v Carnell said:

It seems that the driver probably saw the appellant approximately 60 feet from the point of impact. However that may be, having regard to the fact that the appellant was hit on the left ie inside mudguard of the car, the probabilities are that had the driver slowed, even a little, the collision would have been avoided.

In fact, the plaintiff lost in that case, but it is that statement, which I have just read, which his Honour appears to have been founding himself upon in the part of his judgment to which your Honour the Chief Justice has taken me.

GLEESON CJ: But how can a case, a decision of the court, be authority for a proposition as to what inference is open?

MR HISLOP: We would submit it cannot but, secondly, even if it could, what his Honour has misunderstood is that in Carnell's Case the pedestrian was moving from right to left, so it may be true to say in that situation that if the car had been travelling a little slower the pedestrian would have cleared it because it would have taken it a fraction of a second longer to reach him. In that time he would have completed his passage across the front of the vehicle.

But this case is totally different because here we have the plaintiff coming from the left-hand side and moving across the front of the vehicle. The driver cannot go to the left because that would certainly hit the child and would certainly hit the parked cars, but if the driver goes to the right and is travelling a little slower, all that means is that the child is more likely to be hit, perhaps centrally, by the car because they are both moving in the same direction. It is not, as in Stewart v Carnell, where the pedestrian is moving out of the line.

So we say that, firstly, the court could not properly rely upon that as authority entitling it to draw an inference, that in any event the factual background of that case has been misunderstood by the trial judge. So that, ultimately, it is our submission that on any basis, properly approached, there was no negligence in this case, that the matter should have been dealt with having regard to the evidence in the Court of Appeal and an appropriate conclusion to that end reached, that it was not properly considered in the Court of Appeal and as a result a miscarriage of justice has resulted in that a verdict has been found against the defendant when there was simply no evidence to support it.

GLEESON CJ: Now, you have obtained special leave in this matter in terms of costs.

MR HISLOP: That is so, your Honour.

KIRBY J: Why do you assume the obligation of the miscarriage of justice? All you have to show is error, do you not?

MR HISLOP: Well, yes, I probably stated it over highly because of one of the cases we have referred to, but, yes, we would say error. If necessary, miscarriage but error, certainly. If it please the Court, there are the submission on behalf of the appellant.

GLEESON CJ: Yes, Mr Hislop. Yes, Mr Walmsley.

MR WALMSLEY: If it please the Court. The respondent says there was no error. The ground of negligence that was relied on at the trial was driving at a speed which was excessive in the circumstances. Your Honour the Chief Justice referred earlier to the passage in the trial judge's decision where he referred to putting it out of his capacity to stop, as it were, in case a child came in front of him. That remark was in the context of a submission I think that by reason of the speed, one of the circumstances surrounding that speed was that because of the particular part of the road that she was travelling on, as it turned out she was not able to stop in a time of emergency such as when a young child came on to the road.

KIRBY J: Yes, but this is Victoria Road. This is a major thoroughfare.

MR WALMSLEY: Oh, yes.

KIRBY J: And in order to be able to stop within the distance of a car, that being the distance within which you might see a child running from between cars, the table suggests you have to be travelling at the rate of 10 to 15 kilometres an hour. Now, to suggest that all - you have to apply Immaneul Kant's philosophy here. You have to say what if this becomes the general rule. If it becomes the general rule, everybody dawdling along, not only is that unrealistic, it is not reasonable, that everybody will be swerving in front of other cars greatly enhancing the danger.

MR WALMSLEY: We did not submit and we do not, your Honour, that the traffic should have gone at a snail's pace all along Victoria Avenue. The submission that was made here is that drivers have to modulate their speeds.

GLEESON CJ: But, Mr Walmsley, the child might have jumped out from in front of any car, not the grey car or the silver car, or whatever colour it was. So if this lady was obliged to contemplate the possibility of a child jumping out from in front of a parked car, she would have had to moderated her speed from the time she left her home to the time she arrived at her destination.

MR WALMSLEY: There was a peculiarity about this part of the road, though, we submitted, your Honour. That was that there was a line of cars parked on her left. There was foliage on her left. The combination of those two matters made it impossible for her to see if there were any activities on the part of infant pedestrians on her left as she came down that road. So when she came to that section of the road where there were those cars parked and where there was the foliage, it was at that point where we said she was obliged to slow down sufficiently so that if there were an emergency of this type, she would be able to do something about it. Not necessarily stop, but swerve one way or another, or, at least, react sufficiently to, perhaps, avoid the child. What happened was that when the child was struck - I think it would be helpful if your Honours looked at page 3 of the supplementary appeal book.

MR WALMSLEY: My learned friend took your Honours to, I think, page 4. Page 3 is taken from the other end, that is the end towards which the defendant was travelling, and you will see - - -

GLEESON CJ: That car with the numberplate SPW on the right of this photograph is the same as what we have been told is the silver car?

MR WALMSLEY: I think that is so, your Honour. So that the respondent appears to have come from in front of that car, and one sees a green cross which has been identified as the point of impact. That, as can be seen, is a distance from that car, and, of course, the evidence was that she struck the front passenger side of the car. The white lines show the commencement of the skid marks, so that she has seen the child, she has reacted, and she skidded.

KIRBY J: I thought I read that there was some suggestion that there was a car travelling in the opposite direction?

MR WALMSLEY: There was one travelling in the opposite direction, but it does not appear to have prevented the plaintiff from swerving to the right.

KIRBY J: But it would control the extent to which she could enter the carriageway of oncoming traffic.

MR WALMSLEY: It certainly would have, your Honour. Her evidence was that she swerved to the right but she stayed within her side of the road.

GLEESON CJ: She braked and swerved.

MR WALMSLEY: Yes.

HAYNE J: On the special leave application, Justice Callinan pressed you to identify the speed at which you say the appellant should have been travelling. Do you make any submission to us about what speed would have been a safe speed?

MR WALMSLEY: Yes, I do. In answer to his Honour at the special leave application, in the end, I think I said 5 kilometres an hour was probably contemplated by the expression "a few" - the expression used by his Honour the trial judge.

KIRBY J: 5 kilometres an hour? That seems absolutely unrealistic.

MR WALMSLEY: 5 less.

KIRBY J: 5 less.

MR WALMSLEY: His Honour made a finding that the appellant was travelling at 45 to 50, and then said a few kilometres less would have made the difference.

KIRBY J: Let it be 45 or let it be 40. You are still not going to be able to stop within a few metres. That is the problem.

MR WALMSLEY: Not necessarily a matter of stopping, though, your Honour. It may be a matter of swerving.

GLEESON CJ: We have his Honour's process of reasoning - he spelt it out for us. Do you support it, at the bottom of page 105? There is the syllogism - - -

MR WALMSLEY: Yes.

GLEESON CJ: There are two premises and a conclusion. I do not know which is major and which is minor, but the first premise is that:

the portion of the car which struck the plaintiff was the near side headlight -

and the second premise is that:

before the moment of impact the car was skidding to the right -

because she had braked and swerved when she saw the child. And the conclusion is it is open to infer:

that if the defendant's speed had been slower by a few kilometres per hour, she would have been able to veer away past the plaintiff, or indeed stop in time to avoid the collision.

I would just like to understand that process of reasoning a little better.

MR WALMSLEY: We take that, your Honour, to mean that, as it was, she saw the child just before the collision. She reacted, she slowed down and she swerved. With all of those things happening, she managed to put the car into a position where the child was struck on the front passenger side.

GLEESON CJ: On the nearside headlight.

MR WALMSLEY: Yes, nearside headlight. So that that was travelling at the speed that she found to be doing, 45, 50. So that, if she had been travelling at, say, 40, then reacting, braking, slowing down, she might have been able to either steer further to the right, stopping the child touching the front of the car altogether, or possibly steering to her left so that the child continued on.

GLEESON CJ: I think I understand. The reasoning is that she nearly managed to miss the child?

MR WALMSLEY: She nearly managed to miss it at the speed which she was going at.

GLEESON CJ: Then I would need to understand a little better the proposition that she was struck with the nearside headlight. If what his Honour is saying is "Look, she went within a whisker of managing to avoid this child and that tells me that if she'd been going only a bit slower, she would have avoided her altogether", I would like to understand a little better how close she did come to nearly missing the child. What happened to her headlight?

MR WALMSLEY: The cover of the headlight was broken and the photograph of it appears on page 8 of the supplementary book.

KIRBY J: But is not the problem about this the one that the Chief Justice raised earlier, and that is that you cannot test it by what happened in this particular case because the child might have come running out and gone in a different direction or might have been running faster or running slower. You have to test it by what the general proposition is that you are imposing on the motorist in order to be a reasonably careful motorist. That is the problem I have of testing it in only this particular collection of circumstances.

HAYNE J: The standard for which you contend appears to be that the reasonable driver drives at a speed that would enable that driver to avoid collision with a child emerging without warning from between parked cars.

KIRBY J: In a built-up area.

HAYNE J: Does that encapsulate the standard for which you contend?

MR WALMSLEY: No, it does not.

HAYNE J: Where lies the error?

MR WALMSLEY: In the way in which your Honour has expressed it, it covers all incidents where a child might come out in front of a motorist, and we have never suggested - - -

HAYNE J: This is a speed case, not a lookout case, is it not?

MR WALMSLEY: Yes, it is.

HAYNE J: So must travel at a speed where? What is the content of your standard for which you contend?

MR WALMSLEY: By reason of the circumstances - in this case the impaired vision on the left of the driver caused by the parked cars and bushes - she was unable to see.

GAUDRON J: Well, is that so? We are talking about a toddler. I mean, it is one thing to say it of a five-foot person or a six-foot person. We are talking of a toddler whom you would not see, regardless of the bushes, I should not have thought. She would not come above the car. She would be obscured by the car. The trees do not matter, it seems to me.

MR WALMSLEY: Yes, the point that was made about these was that, either one or other or the two of them, but particularly the cars, obscured the toddler.

GAUDRON J: But that will be so in any suburban street and I do not add "where cars are parked" because that is unnecessary because there are always cars parked in suburban streets.

MR WALMSLEY: But the difference here, we put, your Honour, was that this was - true enough, there were no schools, there was no evidence of pedestrian activity, but because of the combination of the circumstances - - -

GAUDRON J: But what is that combination? What are the circumstances which combine?

MR WALMSLEY: The circumstances were these, that the day was two or three weeks before Christmas. The area where this occurred had, adjacent to it, a mix of housing and some commercial area. It was a Saturday morning. It was 9 o'clock. It was a time when it might have been expected there would be pedestrian activity.

GAUDRON J: Yes, and, so? That does not seem to me to matter anything because what you are talking about is not pedestrian activity in the normal sense. You are talking about someone whom you could not possibly see, I should not have thought, until she emerged from in front of the parked car.

HAYNE J: That is until she travels the distance between the offside point of the car and the near side point of the moving car, a very short distance. It measured probably as, what, 2, 3 metres?

MR WALMSLEY: Well, when one sees the photograph in 3, she has reacted and applied the brakes and started to skid, it would seem, several metres before the point of impact, so there would have been perhaps 3 or 4 metres, including the reaction time before she braked.

HAYNE J: But can I ask you again, what is the standard against which her speed was properly measured?

MR WALMSLEY: We say that the reasonable motorist, in those circumstances, that is, the ones that I put about the time, date and place, would modulate the speed so that, on coming to part of the road where there were cars obscuring possible small infants, one would slow down in sufficient time to be able to stop or swerve if a child came in front of them. Now, that does not mean one slows down to a crawl, 10 kilometres, 5, and it does not mean that one does it all the way down the street. It means that one modulates one's behaviour according to whatever it is.

HAYNE J: But in this particular part of the roadway, this driver should have been driving at a speed that would have enabled her to avoid collision with a child emerging without warning from between parked cars?

MR WALMSLEY: That is what we submitted and that is our submission.

GAUDRON J: For what distance do you say she would have had to travel at that speed?

MR WALMSLEY: She would have had to have slowed down upon it becoming apparent to her what - - -

GAUDRON J: That there were parked cars.

MR WALMSLEY: - - - that there were parked cars which would obscure her view, her distant view, so that she would have had less opportunities to react, or at least a shorter period of time or a shorter distance in which to react in the case of the kind of emergency that occurred.

GLEESON CJ: It is not only little children who emerge suddenly from in front of parked cars. Animals do so and whilst any injuries to them might not have the significance of an injury to a person, people who get into trouble trying to avoid an animal can cause injury to other pedestrians or drivers. It might be high-spirited but careless young people, there would be all manner of - it might be elderly people who have perhaps lost their appropriate sense of caution. There could be all manner of hazards of the kind that you say a driver has to avoid.

MR WALMSLEY: In the kind of setting that was present here - - -

GLEESON CJ: One of the circumstances you have to drive so as to be able to avoid is something or somebody emerging without warning from in front of a parked car when you are abreast of that car, then the consequences for the flow of traffic are fairly extreme, are they not?

MR WALMSLEY: There may be, but it depends on the length of the road where the driver's vision to the left is obscured. It may be that it is only a block where this is a difficulty. So, after that block or half a block or however long the period is, the driver can increase. So it is merely an obligation to modulate one's speed according to what is on the side of the road.

GLEESON CJ: Can I come back to the process of reasoning on the bottom of 105 and the top of 106? I could understand such an approach if, in fact, the blow that the child received from the car was something pretty close to a scraping of paint, but the car did seem to strike the child a fairly solid blow, did it not?

MR WALMSLEY: Yes. Well, that seems to be the case, your Honour.

KIRBY J: The injuries that are particularised are - - -

MR WALMSLEY: Yes, there were severe injuries, your Honour.

GLEESON CJ: What is the evidence that permitted the judge to infer that only a few kilometres less per hour would have made the difference?

MR WALMSLEY: The evidence was, first of all, the speed at which he found she was travelling, secondly, the - - -

GLEESON CJ: That speed was?

MR WALMSLEY: He found 45 to 50, a range of 45 to 50.

GLEESON CJ: Yes.

MR WALMSLEY: Secondly, true it is that that photograph does show a suggestion of a solid hit, that damage to the guard and the fact that she had obviously had severe brain or head injuries, but, it is not without significance, we say, that it was on that side of the car and it was not far from - at least she almost avoided striking the child given that she swerved to the right and was going at the speed she was going at. So, there are two things.

GLEESON CJ: It depends what you mean by "almost".

MR WALMSLEY: By reason of the position on the front left of the car where she was struck, the same kind of reasoning the trial judge used. The third is merely the - the circumstances, I suppose really it is a restatement of the first, is what the appellant was able to do given the speed at which she was travelling, so that if she was going at 5 less the inference we said was reasonably to be drawn that she could have swerved to the left and missed the child altogether or perhaps swerved a little more to the right or perhaps have been able to stop or at least slow down sufficiently so that she would have missed the child.

Now, his Honour, of course, referred to the Court of Appeal decision where a similar form of reasoning had been undertaken, where the pedestrian had almost been missed by the driver. We say as to that, his Honour was seeking solace - I suppose some comfort from the fact that this was a process of factual reasoning that he had appeared in another case and he was not necessarily regarding that as a precedent but merely saying, "Well, that is what another judge did and it seems to be a reasonable way to deal with it and that is the way I am dealing with it, as a matter of commonsense", and that is what he did.

So far as evidence is concerned, it is true; there was no evidence as to how many less kilometres we needed to avoid having the driver strike the child. His Honour the trial judge, using the commonsense that he had, expressed it in the expression, "a few". We have said below and we say here it was open to him to draw that conclusion, make that finding.

KIRBY J: But what is your answer to the table, that you have to really be travelling at 10 to 15 kilometres an hour to be able to stop within a space of a little bit more than a car length?

MR WALMSLEY: Your Honour, that does not necessarily follow. If it is said, for example, his Honour's use of the words "a few", says "five", so that 40 is the speed which the driver should have been travelling at, by reason of the circumstances in which the accident did occur, the greater possibility is there would have been for going to the left or to the right or slowing down, et cetera. We are not saying that she had to travel at 10 to 15 kilometres an hour. That probably would have avoided any emergency whatsoever. It may not have even - - -

KIRBY J: It may have created her own emergency.

MR WALMSLEY: It may have created her own, certainly, but she would not have had to brake. But what the trial judge appears to have done is to say, "Well, a few, probably five. This is what happened. This is what probably would have happened if she'd had a smaller speed of, say, five less". He was not saying she had to go 10 or 15 or 20, just a few less.

KIRBY J: The trouble is the law of negligence is founded on assumptions of reasonableness, reasonableness in suburban streets. Reasonableness tells you that people regularly and commonly travel at 45 kilometres an hour and that therefore, for this Court to say, confirming the primary judge in the Court of Appeal, "Well, they all have to really travel at 5 or 10 kilometres less", is to set a standard which is not reasonable. That is the problem.

MR WALMSLEY: Your Honour, the answer to that, we say, is it is one peculiar set of circumstances.

KIRBY J: Yes, but you have to test them by what follows if it becomes the general rule.

MR WALMSLEY: Yes. One can see the dangers of it, but all that is being said is, if this Court endorses what the trial judge regarded as unreasonable, our submission about that is that it is merely saying that in those circumstances she was driving too fast. It does not follow from that that every driver in New South Wales or in Sydney, even in Victoria Road, has to travel at that speed every day, seven days a week, 24 hours a day.

KIRBY J: Are you suggesting that there was any advantage that the primary judge had that the Court of Appeal did not have and that we do not have?

MR WALMSLEY: I cannot suggest that, your Honour. There were none of the usual matters that might have made that different.

CALLINAN J: There were no facts in dispute at all?

MR WALMSLEY: No, there were not, your Honour. May it please the Court.

GLEESON CJ: Thank you, Mr Walmsley. Yes, Mr Hislop.

MR HISLOP: Just very shortly, your Honours, if my friend is correct that the trees were a relevant factor, then it is apparent from photograph No 3 to which he has taken the Court - the photograph on page 3, rather, of the supplementary book - there are trees the whole length of this street which would have meant one would have had to drive or crawl along this street, and in any other tree-lined street.

Secondly, your Honour Justice Gaudron said that the problem was really that of the parked cars, which are common everywhere. In these particular facts of this case, what your Honour says is borne out by the evidence of Constable Gordon at page 27 at 45 to 28 - 15 where she says, in effect, that the parked cars were the major problem.

CALLINAN J: Mr Hislop, is photograph 1, is that the house that the child came out of?

MR HISLOP: Photograph 1, your Honour?

CALLINAN J: In the supplementary book. Is it the house with the gate or the one that is obscured by the tree?

MR HISLOP: I think it may be the other one, but if I might just have my junior check that, your Honour.

CALLINAN J: Because if it is the one with the gate, that is quite a secure fence and it looks like a gate with a latch. One would hardly expect a 21-months-old child to be able to get over the fence or perhaps even undo a latch on the gate, if it is that one.

MR HISLOP: Yes.

CALLINAN J: It would just make the intrusion of a child, if one reflected on it, even more unlikely.

KIRBY J: That is assuming the driver knew of the configuration, which the driver may well not.

MR HISLOP: Yes, indeed. And I think there is some evidence this driver was not particularly familiar with this road. My friend talks of modulating behaviour whenever there are parked cars in the lane. It that to mean that as the traffic travels along, it is going to stop or suddenly prop at every shadow in the like. The result of that would be to cause far greater risks than the remote risk that occurred here.

As to the child running out, if the car had been travelling in this particular case, and I think the point has already been made by the Court that the Court is looking to the larger issue here, but in this case if the car's speed had been 2 or 3 kilometres less, it would have made no difference to there being an impact because at all stages the child is running. So if the car is 2 or 3 kilometres slower, it just means the impact as the child runs across the front of the car will be more central on the car, and that is where his Honour went wrong in his interpretation of Carnell's Case.

My learned junior in answer to your Honour Justice Callinan's question, it was the house beside the one with the fence which attention was drawn from which she came.

CALLINAN J: The one with the tree in front of it, then.

MR HISLOP: Yes, your Honour. Yes, if it please the Court, that is all.

GLEESON CJ: Thank you. We will reserve the decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 11.22 AM THE MATTER WAS ADJOURNED