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Negligence - Duty of Care - Children

Monday 10 September 2001
Supreme Court of New South Wales

Gunning v Fellows (By his Tutor L Fellows) (96040427)
GUNNING v FELLOWS (By his Tutor L Fellows)
40427/96; CL 40054/93

11 February 1997

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, COLE, BEAZLEY JJA

CATCHWORDS: NEGLIGENCE- Child on bicycle near road- Standard of care expected of a reasonably prudent driver- Motorist to exercise greater care and caution than usual when young children in the vicinity.

CONTRIBUTORY NEGLIGENCE- Appropriate apportionment-Standard of care expected of children

EX TEMPORE/RESERVED: EX TEMPORE

ALLOWED/DISMISSED: DISMISSED


JUDGMENT


MASON P: I will ask Beazley JA to give the first judgment.


BEAZLEY JA: This is an appeal from a judgment on liability only by Master Greenwood in which the Master held that the appellant was negligent when his motor vehicle collided with the respondent who had ridden a bicycle down a driveway and onto the road. The respondent was held to be twenty-five per cent contributorily negligent for the accident. As a result of the collision the respondent, who was almost twelve years old at the time, suffered severe head injures and permanent brain damage. So severe were his injuries he was unable to give evidence.


The accident occurred at 7 pm on 14 November 1992 during daylight saving time in well lit, clear conditions. The footpath upon which the respondent and two companions had been standing just before the respondent rode down the driveway was higher than the road by about one metre and separated from it by a grass verge approximately 6.8 metres wide. The accident occurred on the second occasion that the respondent rode the bicycle down the driveway. On the occasion when the collision occurred the respondent rode the bicycle slowly down the driveway but as he entered upon the roadway "he pedalled fast" and that is when the appellant's vehicle hit him. At that time the appellant was driving in a westward direction along Ashmont Avenue, Wagga Wagga.


According to his statement to the police the appellant was travelling about sixty kilometres an hour. He said:

"A kid on a bike rode onto the roadway from a driveway on the left-hand side of the road. I didn't have time to brake or swerve and he ran into me on the front left-hand side of the car."


The appellant didn't give evidence and from this statement to the police officer the Master found that he did not see the child. The point of impact occurred about five metres into the roadway at a point about a metre to the left-hand side of the dividing line between the two lanes of the road. The Master found that the bike collided with the car "closer to its front".

Master Greenwood accepted the evidence given by Constable Swain who attended at the scene of the accident and a private investigator, Mr Connolly, retained by the respondent that a driver driving west along Ashmont Avenue would have had a view from 100 metres from the kerb at the point where the respondent rode the bike onto the road and that

"he was able to see three children and a bike at a minimum distance of 80 metres from the point where the boys were then standing on the footpath."


The Master held that there was no parked car impeding the appellant's view. That finding is now accepted by the appellant although it had been challenged originally in the Notice of Appeal.


As argued in Court essentially two issues were raised on the appeal: first, whether the appellant had breached the duty of care owed to the respondent and, secondly, whether the Master had erred in assessing contributory negligence at twenty-five per cent, the appellant contending that the assessment should have been reversed, namely, that the respondent was seventy-five per cent contributorily negligent for the accident.


Although the appellant did not challenge the existence of a duty of care in the circumstances, it is important when determining whether there has been a breach of such duty to remind oneself of what the duty of care entails. It has been consistently established by authority that when young children are in the vicinity of a road or reasonably to be expected to be in the vicinity, a greater standard of care and caution is demanded of motorists (see: Lolomanaia v Rush (unreported) NSW Court of Appeal 15 July 1996; Mitchell v GIO (1992) 15 MVR 369; Settree v Roberts (unreported) NSW Court of Appeal 5 June 1981; Stoeckel v Harpas (1971) 1 SASR 172 and Mye v Peters (1967) 68 SR (NSW) 298).


In Stoeckel v Harpas (supra) Wells J exhorted jurors to:

"Require of motorists a measure of what is sometimes called defensive driving or a lookout that not only sees immediate or immediately developing danger but looks well ahead and searches for potential danger."


In Mitchell v GIO (supra) Kirby P observed in relation to the standard of caution required of motorists where children are near a roadway that the principle is:

"... based on knowledge of the well-known propensities of children which the law attributes to drivers. It is also based, as Mahoney JA stressed in Settree that it is the driver who is generally in a better situation to anticipate and control events. He or she tends to be much older and more experienced in the ways of the traffic-way. Furthermore, he or she is in charge of a faster moving object with a large potential to cause grave injury and even loss of life, including to children who are pedestrians or otherwise near the highway. It is this disproportion of responsibility, control and experience, as well as knowledge of the occasional irresponsible behaviour attributed to children and known by the motoring public, that has led to the development of the approach to which an unbroken series of decisions in this Court has given effect..."


In Settree v Roberts Hope JA at page 4 also made the following observations which are applicable to this case:

"... Seeing a group of young children so close to the side of the trafficable portion of the road, even though their backs were turned to that portion of the road, the defendant had a duty to take appropriate precautions to guard against the event that one or more of the children might do what children have a well-known propensity of doing, that is, move suddenly out onto the road: cf. Mye v Peters (1967) 68 SR (NSW) 298. That one of the children might so act was a possibility which the defendant ought reasonably to have foreseen and guarded against. There was ample time and ample room for her to adopt some course of action to avoid the risk of an accident; she took none. By slowing down or by moving away from the side of the road towards the centre, or across it (there is no evidence that any vehicles were coming in the opposite direction at the time and it was not suggested to witnesses who saw the accident that there were) she would have given both the plaintiff and herself a greater opportunity of avoiding the accident. The use of the horn would have warned the plaintiff of the danger created by her approach (cf. Motor Traffic Regulation No 107). It was open to the learned judge to find that the defendant could and should have taken some action to avoid the foreseeable risk to the plaintiff, and that her failure to do so constituted negligence. I respectfully agree with this conclusion ..."


Master Greenwood found that from the point of view of the appellant driving west on Ashmont Avenue he was able to see the three children and the bike, as I have said, at a minimum distance of eighty metres. Given the degree of vigilance and responsibility required of a driver in the circumstances of this case, I am of the opinion that the appellant clearly breached the duty which he owed to the respondent to become aware of the presence of the children on the footpath and, as Master Greenwood found, to have been aware of the impulsiveness of a young boy of about the age of the respondent to ride down a steep driveway. The appellant in those circumstances was required to keep an eye on the children to see what they might do and to be in a position to take preventative action if necessary such as to have sounded his horn, to have slowed down and if necessary to have braked and swerved so as to avoid a collision. In the circumstances I am satisfied that the Master's finding was correct and that the appellant breached the duty of care which he owed to the respondent.


That leaves the question as to whether the Master erred in his assessment of the respondent's contributory negligence. Contributory negligence, of course, is measured by the failure of the person to take reasonable care for the person's own safety. The authorities, again, establish that the law employs a sliding scale of responsibility where children are involved, sliding down, of course, according to age. In Cotton v Commissioner for Road Transport (1942) 43 SR (NSW) 66 Jordan CJ observed at 69:

"...It is obvious that a child is less capable of taking care for its own safety than a normal adult and the younger the child the less the capacity until a stage is reached at which there is none."


In McHale v Watson (1966) 115 CLR 119 Kitto J stated:


"...the standard of care is objective; it is the standard to be expected of a child, meaning any ordinary child, of comparable age ... not that which is to be expected of an adult; and the child's blamelessness, by the standard so determined, is treated as saving his conduct from being regarded as such a cause of his injury as to affect the question of the defendant's liability..."


In determining what is an appropriate apportionment, the High Court said in Pennington v Norris (1956) 96 CLR 10 at page 16:

"... What has to be done is to arrive at a 'just and equitable' apportionment as between the plaintiff and the defendant of the 'responsibility' for the damage.


... ...


Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff's conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration."


In this case the respondent although not a very young child, was still not quite twelve years of age. The appellant was able to see him at least from about eighty metres before the point of collision.


Having regard to the fact that a motor vehicle, of its nature, is able to inflict a greater injury than is a bike and, taking into account the fact that the very duty including the standard of care which is imposed on the appellant so as to recognise that children often act suddenly, impulsively and without thought, or perhaps to adopt the language of senior counsel for the appellant, stupidly and illogically, I am of the opinion that the Master's assessment of contributory negligence was within an appropriate range having regard to the circumstances. Accordingly, in my opinion the appeal should be dismissed with costs.


MASON P: I agree. In Mitchell v GIO at page 371 Kirby P quoted from an earlier judgment of his Johnson v Johnson and said that only the advent of compulsory insurance

"... can explain the shift of community attitudes to accident prevention reflected in the decision of the Court ... The advent of compulsory motor vehicle insurance has indisputably (although often unconsciously) affected the determination by courts that particular conduct in the control of a motor vehicle amounts to negligence ..."


I think this is a case that particularly merits reference to that passage. I agree in the orders proposed.


COLE JA: I agree with the judgment of Beazley JA. I would only add that the circumstances in which this Court may interfere with an assessment of contributory negligence are limited (see Pennington v Norris (1956) 96 CLR pages 10 and 15 and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 493-4). I agree with the orders proposed.


MASON P: The appeal is dismissed with costs.

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Infant pedestrians

The NSW Court of Appeal has consistently found primary negligence by the drivers of motor vehicles which have struck infant pedestrians, despite the fact that the reaction time available to the drivers has been minimal.

In Stewart v Nominal defendant (unreported) CA 12 August 1986 Kirby P (as he then was) stated at page 5, "the standard of care that can reasonably be expected of a driver necessarily varies with the circumstances. A driver in the middle of the Nullarbor Desert at midnight will not have to anticipate young persons crossing in front of his path with the same frequency and in the same manner as a driver approaching in the vicinity of a swimming pool and a hotel on a hot sunny afternoon in February ... It is not necessary for the claimant to show that the defendant was speeding. Momentary inattention is sufficient, given the drastic consequences which can flow from the impact of a motor vehicle with the human body, and the superior position typically enjoyed by the driver to control a potentially dangerous situation which can arise from such an impact".

In Lolomanaia v Rush (unreported CA 16 July 1996) the Court of Appeal overturned the decision of the trial judge who found that the infant plaintiff, who was four at the time of the accident, had failed to establish primary negligence by the defendant. In that case the defendant had driven into the street where the plaintiff and his family lived and approximately forty metres before the car struck the plaintiff who had run out from in front of a parked van. The evidence indicated that the defendant had seen the children on the side of the road but had not seen the plaintiff until the very last moment. The plaintiff had been playing hand ball with his three siblings at the time and was chasing a ball which had gone across the road.

It was held that the presence of young children on or near the road constituted particular circumstances which called for the exercise of greater care and caution than usual by a reasonably prudent driver.

In Gunning v Fellows (unreported CA, 11 February 1997) an eleven year old boy rode a bicycle down a driveway onto the road and was struck by the defendant's motor vehicle. Apparently the child had ridden the bicycle slowly down the driveway but as he entered upon the roadway "he pedalled fast" and was hit by the vehicle.

Beazley J.A. at page four, after having observed that the defendant had been able to see the plaintiff and other children from 80 metres away, stated:

"Given the degree of vigilance and responsibility required of a driver in the circumstances of this case, I am of the opinion that the appellant clearly breached the duty which he owed to the respondent to become aware of the presence of the children on the footpath, and, as Master Greenwood found, to have been aware of the impulsiveness of a young boy of about the age of the respondent to ride down a steep driveway. The appellant in those circumstances was required to keep an eye on the children to see what they might do and to be in a position to take preventative action if necessary such as to have sounded his horn, to have slowed down and if necessary to have braked and swerved so as to avoid a collision".

The Court of Appeal upheld the verdict and apportionment of 25 per cent contributory negligence. Beazley J.A. further stated:

"The authorities, again, established that the law employs a sliding scale of responsibility where children are involved, sliding down of course, according to age".
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COURT OF APPEAL DECISION IN LOLOMANAIA -v- RUSH - TRIAL JUDGES FINDING OF NO NEGLIGENCE ON THE PART OF THE DEFENDANT, OVERTURNED BY COURT OF APPEAL

Background Information

In 1989 the Appellant (Lolomanaia), then almost 4 years of age was injured when he was struck by a motor vehicle driven by the Respondent (Rush). The Respondent turned into Wharf Road, West Ryde, from Victoria Road at approximately 5.00 pm on 3 September 1989 and proceeded for 40 m along Wharf Road, whereupon she struck the Appellant who had run out from in front of a parked van adjacent to the kerb on the Respondent's left hand side.

The Respondent did not give evidence during the trial at first instance before His Honour Judge Abadee in Supreme Court Sydney, but her record of interview with the Police was tendered and formed part of the evidence.

His Honour Judge Abadee at first instance returned a verdict for the Respondent, concluding that the child's actions gave the Respondent no opportunity of avoiding a collision and that there was no negligence on the part of the Respondent.

Court of Appeal Decision

Court of Appeal Judges Clarke and Sheller found in favour of the Appellant on the following grounds (Cole J A dissenting):

During the course of the judgment at first instance Abadee J observed that the Respondent had not given evidence and it was legitimate for him to infer that she would not be able to assist her case. But that, as His Honour put it, was "the end of the inference". The Appellant submitted that His Honour Judge Abadee drew too restricted an inference on the Respondent's failure to give evidence during the trial of the matter. The majority of the Court of Appeal held that the principle in Jones -v- Dunkel (1958-59) 101 CLR 298 permits the Court to draw more easily available inferences adverse to the party who failed to call available evidence, including an inference of negligence.

The majority of the Court of Appeal held that the presence of young children on or near the road is a particular circumstance which calls for the exercise of greater care and caution than usual by the reasonably prudent driver. The Respondent was negligent in failing to moderate or adjust her driving in order to ensure that she could deal with a possible risk of a tragedy if indeed there was a child hidden by the van who suddenly came onto the road.

To appreciate the difference in view between the majority and minority of the Court of Appeal, it is imperative to look at the Respondent's record of interview with the Police given on the day of the accident, excerpts of which follow:

"Q6. Could you tell me what happened?

A. ....... I stopped at the traffic lights, and .... I proceeded to turn right into Wharf Road. There were no cars being driven in front of me. As I turnedI noticed a red van on my left parked at the kerb about 2 houses down from the corner of Victoria Road. Then I noticed, I am not sure if they were all girls, about 6-10 [year] old [s] standing on the other side of the road to the red van, on the footpath opposite to the van (western kerb side Wharf Road). I then noticed them looking, it seemed like one of the girls were saying "come here" but then it may have been "stay back" but it seemed to be hands beckoning to someone on the kerb side where the red van was. At that stage I didn't see the boy, but I was now near the end of the van, and he ran out from behind the end of the van ...... and the front passenger side hit him."

The majority of the Court of Appeal took the view of the evidence quoted above that the events were being described sequentially, so that the events in the last sentence would occur after those in the preceding sentence. Cole J A interpreted the evidence on the basis that the penultimate and last sentences of the answer had to be read together so that Cole J A took the view that the girls saying "come here" and "stay back" occurred at exactly the same time when the Respondent was near the end of the van.

Conclusion

The failure to call a Defendant to give evidence does not automatically mean that the Plaintiff's case is proven nor is it meant to bridge any gaps in the Plaintiff's evidence. However, the failure to call the Defendant to provide evidence contrary to evidence before the Court can lead the Court to make the inference pursuant to Jones v Dunkel that the Defendant would probably not have assisted his or her case and that it is open to the Judge to make an inference against the Defendant and in favour of the Plaintiff.

The case also establishes that where children are involved on or near the road, the Defendant must exercise greater care and caution than usual by the reasonably prudent driver.

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