|CATCHWORDS:||TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK-OUT – PEDESTRIAN ACCIDENTS – where the plaintiff claims damages for personal injuries sustained in a motor vehicle accident – where the plaintiff was aged 2 years 8 months at the time of the accident – where children were playing handball on the side of the road – where a tennis ball bounced onto the road and was chased by the plaintiff – where the plaintiff was struck by the car – where the driver did not see the children near the road or the tennis ball – where the driver did not brake on seeing the child – where the driver put the car into a “defensive slide” when she saw the child on the road – whether the driver was negligent in failing to keep a proper lookout – whether the driver was negligent in failing to take appropriate evasive action|
Liability was in issue and whether the version of the witnesses who were children at the time, should be preferred to the driver of the vehicle, together with the content of the duty of care.
The injury to the plaintiff child happened in 1989 in circumstances where “handball” was being played on the driveway of a suburban residence by children aged 10 and 11 years, with the plaintiff watching aged 2 years and 8 months. The ball in play went past one of the players and onto the roadway, whereupon the plaintiff has followed it and collided with the vehicle driven by defendant in the middle portion of the roadway. It was about 7:30pm on Melbourne Cup day, but daylight savings was in operation at the time.
Janet, the plaintiff’s sister and participant in the handball game; aged 10 years at the time gave evidence, which was in conflict with the defendant. Her evidence was however, accepted with due consideration to weight:
 True it is that Janet was only 10 years old at the time of the accident, but this does not of itself make her evidence unreliable – Michael was the same age but counsel for the defendants would have me place no similar doubt on his evidence. It was submitted that Michael was independent and attempted to give an accurate recollection. Janet would understandably have been upset at her little brother’s injury. But so was Ms Hammer – she described herself as “hysterical” after the incident. Janet’s age and distress are not on their own, sufficient to completely discredit her evidence.
 There is an inconsistency between the evidence of Janet and Michael about the identity of the children who were playing at the time. I see no reason why Michael’s version of the handball game should be categorically accepted over Janet’s. No evidence was given by the other boy, Ainsley, and there is no other evidence to corroborate either story. In any event, I do not think that anything turns on the identity of the second player in that game.
 Janet said that Paul was already on the road when she first observed him and that he seemed too far away from her to reach out and bring him to safety. If Janet was, as she says, involved in the game of handball, she would have necessarily been at least a couple of metres from the curb. While much emphasis was placed by counsel for the defendants on the fact that Paul was running “apace”, it must be remembered that he was only a toddler and even if he did “run” across the road and was already just on the road when Janet saw him, it would take a number of seconds for him to travel the distance from the curb to the middle of the road. If the initial evidence of Ms Hammer regarding when she first saw the boy on the road (i.e. just past the shop) is accepted, then the car must have been approximately 25 metres away and there would almost certainly have been time for Janet to make observations to her left and right before the impact. Janet was most certain of these observations and was not shaken in her evidence despite extensive cross-examination. In light of this, I do not find that Janet was resistant to “basic propositions such as the immediacy of the accident” as was submitted for the defendants.
 Janet’s essay did contain a mixture of her own account, her suppositions and second hand knowledge she had acquired. Janet was, however, most forthcoming when giving evidence regarding this. I do not propose to give particular weight to the statements in this essay, given the emotive writing and the fact that it is not entirely her recollections. The fact that a teenage girl wrote an emotive essay regarding an accident involving her younger brother when she was asked to write down what she remembered of the incident is not, however, a factor which bears on an assessment of her ability to give truthful evidence before the court.
 I do not find that the absence of a record of her as a witness in the police records is a matter which bears negatively on her credibility. Rather, it is entirely consistent with the fact that the ambulance and Paul’s immediate family left the scene prior to the arrival of the police.
 For these reasons, I am not prepared to regard Janet’s evidence as unreliable. I note, however, that it is not appropriate to place much weight on her observations made about the speed of the vehicle. She was a child at the time and admitted a defect in relation to her perception of time (Janet said that the incident seemed to occur in “slow motion”).
Michael who was aged 11 years at the time and also a participant in the handball game also gave conflicting evidence, which was preferred over the defendant’s:
 The difficulty with the defendant’s theory that the incident happened so quickly and that the toddler emerged virtually under the wheels of the car is that, even on
Ms Hammer’s version of events, she had ample time to put the car into the defensive slide manoeuvre. Nor does this theory sit well with her contemporaneous statement to police that she saw the boy on the road as she was going past the corner shop.
 The yellow tennis ball was hit by Michael past his opponent and travelled across the road to the opposite gutter. Michael said that the ball was not hit particularly hard and that it was nearly at the gutter on the opposite side of the road when Paul was hit as he neared the centre line on the road. In the course of cross-examination, Michael gave the following evidence:
“And you were playing handball and Ainsley missed the ball. So it wasn’t a peg or a hard throw—–? — No.
—–that put the ball onto the road. It was —–? — Not – a normal hit, yeah.
So there’s a bit of driveway behind where Ainsley was standing. By the time the ball got to the end of the driveway it was pretty well just rolling, wasn’t it?– Yes.
And Paul was running faster than the ball was rolling? — Yes.
And you’re quite definite, though, that the ball hadn’t reached the other side by the time Paul was hit? — Yes, that’s correct.
And you think that he might have been one or two steps behind the ball when he was hit? — Yeah. Basically, it just happened so quick. I just don’t take no notice of where the ball was. I just concentrated on trying to stop Paul from actually trying to get to the ball himself before he gets hurt. Being, like, a young toddler obviously you have no road sense. It could have been a possibility that the ball didn’t hit the kerb before.”
 On the evidence as I have assessed it, the ball must necessarily have preceded Paul by a number of metres for the following reasons:
(a) Paul was originally squatting near the garage doors when the ball was hit towards the road by Michael. When the ball was missed by the other player, Paul must have reacted, stood up and started to move after the ball. When Paul realised the ball had been missed, the ball must have been on, or almost on, the road (as the opponent was standing adjacent to the road);
(b) Paul must then have run the length of the driveway (estimated at approximately 10 metres) to the edge of the road and then another 1.6 metres (the width of the parked van) to emerge in the roadway;
(c) Counsel for the plaintiff submitted that the fastest man in the world can run at the speed of ten metres per second and a world class marathon runner could cover about six metres per second; a “toddler” aged two years and eight months will be considerably slower than this. Even if the (rather generous) speed of 3 metres per second was used (which equates to running 100 metres in 33 seconds) and allowing one second for his reaction time, it would have taken Paul 5 seconds to travel the length of the driveway and emerge from in front of the van, giving the ball 5 seconds to travel across the road;
(d) The ball would necessarily have slowed as it travelled across the road and approached the rise in the centre of the road, so it is likely that Paul would have been able to gain some ground on the ball;
(e) But, Paul was only a toddler; even if he managed to make up half the ground between him and the ball, the ball would still have preceded him by at least 5 metres, and probably more.
(f) Considering the length of the driveway, the ball must have preceded Paul onto the road by at least 5 metres.
 Counsel for the plaintiff submitted that had the ball preceded the child onto the road by 5 metres (approximately 2 seconds) this represents 22 metres of car travel at 40km/h, which, given that she was 25 metres from the point of impact when she saw the boy, places her over 45 metres from the point of impact when she could, and should, have seen the yellow tennis ball on the road.
 Ms Hammer gave evidence that if she had seen the children playing in the driveway she would have taken special precautions. She accepted that the observation of a tennis ball bouncing or rolling onto and across the road in front of her vehicle would have led to her being concerned that a child may chase it to retrieve it and would have called for her to take special precautions, namely braking and being more vigilant.
Breach of duty of care
His Honour considered a number of authorities:
Antypas v McKeon  NSWCA 417, distinguished
Derrick v Cheung  HCA 48, distinguished
Hobbelen v Nunn  Qd R 105, cited
Latham v Fergusson  NSWCA 288, distinguished
Lolomanaia v Rush (1996) 24 MVR 128, cited
Mitchell v Government Insurance Office (NSW)  15 MVR 369, cited
His Honour concluded:
 In Vairy v Wyong Shire Council, Hayne J said:
“When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.”
 My conclusion in the present case is that a reasonable and prudent driver, keeping a proper lookout, would have observed at least one (and maybe more) children playing on the driveway as they drove along Kumbari Avenue. No reasonable explanation was given for Ms Hammer’s failure to see the children. It is possible that she had, as counsel for the plaintiff suggests (and consistent with the evidence of Janet, that she saw the driver looking at something behind her), focussed her attention on the people she saw walking out of the house several lots down the street and not on the road ahead. For whatever reason, Ms Hammer failed to see the children. The sight of children adjacent to the road necessitates special care be taken by a driver, given children’s well known propensity to act suddenly and without care for their own safety. A prudent driver would have reduced their speed and perhaps moved towards the centre line in the road as they approached the children playing.
 The bright yellow tennis ball bounced or rolled across the bitumen at least 5 metres ahead of Paul entering the road. A bright yellow tennis ball against a black bitumen road would have been clearly visible to a driver paying proper attention to the road ahead. Ms Hammer did not see the ball. The sight of a ball bouncing across a road requires immediate precautionary action by a driver, considering the high probability that balls are often followed by children, who may run onto the road unexpectedly.
 These are two indicia of a particular perceivable risk which the driver should have observed and taken into account, i.e. the risk of a child running onto the road. A driver must control the speed and direction of the vehicle in such a way that the driver knows what is happening in the vicinity of the vehicle in time to take reasonable steps to avoid exactly these sorts of well-known risks.
 I have already indicated my acceptance of Ms Hammer’s statement to police that she saw the child when she was travelling past the shop, some 25 metres before the point of impact. Even if she did not see the children or the tennis ball, the sight of a small child running onto the road necessitates immediate braking. However,
Ms Hammer did not apply the brakes, instead, attempted to put the car into a defensive slide manoeuvre.
 This is not a case like Latham v Fergusson in which it could be said that, even if a proper lookout had been kept to her front and she had made the available observations (in this case of the children, the ball and the boy), there was insufficient time for her to react and brake so as to avoid impact. Ms Hammer clearly did have time to react. Nor was this a case like Antypas v McKeon, where the child ran out so quickly that the driver could not be faulted for swerving rather than braking the vehicle in an attempt to avoid collision.
 This is a case where there was a clear and perceivable risk of children which was observable to, but not observed by, the driver. Accordingly, the plaintiff has proved that the first defendant failed to keep a proper lookout. It then falls to the plaintiff to prove that, if the driver had kept a proper lookout, she would have seen the indicia of danger and/or the boy in sufficient time to take precautionary and evasive action to avoid the collision.
 If a proper lookout had been kept and precautionary measures taken, this accident could have been avoided. Even though the driver did not brake but rather, in a late response to the situation, put the car into the defensive slide manoeuvre, the collision very nearly did not happen; the child was hit by the nearside of the car as the car slid, tracking Paul’s direction of travel.
 Even though Ms Hammer did not see the children or the ball, she still took evasive action in the form of a defensive slide. While it was clearly a reaction made in an emergency situation, it was not, I think, the action to be reasonably expected of a driver confronted with that situation. The emergence of a child some 25 metres in front of the vehicle requires emergency braking. A “defensive slide” would have prolonged the movement of the vehicle towards the child and effectively caused the vehicle to follow the child’s movement as he ran across the road, increasing the likelihood that a collision would occur. The “defensive slide” was clearly not a reasonable response to the situation.
 A reasonably prudent driver, on seeing children playing on the driveway and noting the obstruction to vision presented by the parked van, would have slowed and become more vigilant. The driver would have been in a state of heightened awareness so as to be able to react quickly to the emergence of a child onto the road. On seeing the tennis ball bounce across the road at a distance of about 45 metres in front of the vehicle, the appropriate and reasonable response would have been to immediately and severely apply the brakes, given the likelihood that a child would follow the ball onto the road. Had the brakes been applied at this time, the collision would surely have been avoided.
 I therefore find that the plaintiff has proved his claim against the first defendant in negligence. The parties informed me that agreement had been reached on the quantum of damages, subject to necessary sanction by the Court.
Brisbane Barrister – David Cormack