Kain v Mobbs

The plaintiff was born on 2 August 1990. On 5 April 2001 he was ten years and eight months old and a student in year four at Lakeside Christian College. He regularly travelled to and from school on a school bus owned and operated by the third defendant. Each afternoon the plaintiff would alight at a bus stop situated on the eastern side of Kingscliff Street, Kingscliff after a journey south from his school in the north. Kingscliff Street was a main road in the area running effectively north/south. The plaintiff's home was located in a street on the western side of Kingscliff Street, so that it was necessary for him to cross that street every day when he alighted from the bus.

On 5 April 2001 the plaintiff travelled home from school on the bus as usual. It was regularly driven on this journey by the fourth defendant, who was in fact driving the bus on this day. The bus arrived at the plaintiff's stop at somewhere between 3.35pm and 3.45pm. The plaintiff alighted from the front door of the bus with another boy, Tim Paine, onto the footpath on the eastern kerb. Shortly thereafter, but before the bus moved off, the plaintiff ran across the road at an angle of about 30° south of due west from a position on the footpath approximately one metre south of the front of the bus, where he collided with the side of a motor vehicle owned by the first defendant and then being driven past the bus in a southerly direction by the second defendant. As a result of this collision the plaintiff was severely injured.

The plaintiff sued the defendants in negligence claiming damages for his injuries. His case against the first and second defendants as a group was different to his case against the third and fourth defendants as a group. No internal distinction, however, is drawn between the plaintiff's case against the first defendant and second defendant, or between the third defendant and fourth defendant.

The plaintiff's case against the first and second defendants is limited to a consideration of the physical circumstances of the accident, involving as it does the collision between a pedestrian and a motor vehicle on a public street. The plaintiff's case against the third and fourth defendants, however, whilst necessarily based upon the same accident, extends as well to a consideration of the relationship between the plaintiff and the third and fourth defendants arising out of the plaintiff’s travel on school buses over a period of about a year and events that are said to have occurred within the bus on many of those occasions. In brief, the plaintiff alleges that the third and fourth defendants came under a duty to him that had to be formulated by reference to his particular needs and in the light of a knowledge of his physical, emotional and behavioural propensities. In addition, the plaintiff alleges that the fourth defendant breached his duty of care to the plaintiff, in both the circumstances and the way in which he allowed or permitted the plaintiff to alight from the bus on the day of the accident.

The case against the third and fourth defendants necessarily involves and requires a consideration of all of the facts giving rise to the case against the first and second defendants but, with some minor factual exceptions, the reverse is not true. (These exceptions relate to the physical condition of the bus, whether its amber warning lights were activated, what words or signs were written or displayed on the back of the bus, and whether or not the fourth defendant sounded his horn or activated his trafficator in preparation for leaving the kerb. There may be others as well). Because of this, it becomes convenient to deal with the plaintiff's case against each group of defendants separately. The case against the first and second defendants

The plaintiff had no recollection of the accident and was accordingly unable to give evidence about it. None of the passengers in the bus, who were all school children of various ages, was able to give a relevant account of what happened outside the bus. Tim Paine was a passenger who alighted at the bus stop with the plaintiff but he could not be found. The first, second and fourth defendants gave eyewitness accounts of what occurred. There was, in addition, one other eyewitness, Mr Cottrell, who observed what occurred from a position on the western side of Kingscliff Street approximately opposite the bus stop. What follows is a description of the accident according to accounts given by them.

Exhibit 5 was a statement given to police by the first defendant on the day of the accident. She said that on that day she was in the front passenger seat of her car then being driven by her son, the second defendant, in a southerly direction in Kingscliff Street at Kingscliff. She said the second defendant " was driving at a speed of about 30 to 40 km per hour ". As the car approached the intersection of Ocean Street, there was a school bus stopped against the left-hand side of the road. She said the second defendant " slowly continued to drive past the bus ". As they came level with the front of the bus, " a little boy was running full pelt and [ran] into the side of [the] ca r". The child's head shattered the left side of the windscreen and also broke the left-hand side mirror of the vehicle.

Paragraph 8 of the first defendant's statement was rejected by me and did not become evidence in the proceedings.

The first defendant confirmed what she had said in her statement about the speed of the vehicle prior to the collision in her evidence in chief in answer to questions from Mr Deakin of Queen’s Counsel who, with Mr Nolan of counsel, appeared for the first and second defendants. That evidence was as follows: "Q. As the vehicle approached the rear of the bus can you recall what speed it was doing? A. It was doing about 30 to 40. Q. Did that speed alter at all up to a point at which this impact occurred, to the best of your recollection? A. No."

The first defendant said that at no time prior to seeing the plaintiff did she see any children - indeed anyone at all - alighting from the bus. The first defendant said that, at a point where she saw the plaintiff’s face through the side window of the car, which I take to be almost the instant of the collision, the rear of her car was "[ a ] bout one to one and a half car lengths in front of the bus ". She thought the car was positioned on the roadway about midway between the centre line of the road and the offside of the bus.

The first defendant described the plaintiff's movement from the kerb in the following way: "Q. Mrs Mobbs, can you describe the movement of the lad who ran into your car from the point you first saw him until the collision occurred? A. It was immediate. It was like there was nothing and then all of a sudden there was a face in my side window, so much so that it made me blink. Q. But are you able to describe the journey from that point from when you first saw him, the direction of travel? A. He had come from behind. Q. At what angle, if any, to the kerb did he travel? A. 45 degrees—"

She gave the following evidence about the plaintiff's speed of travel: "Q. Can you indicate to us how fast he was moving? A. Yes, he seemed to be moving very quickly." She did not observe the second defendant to swerve away from the plaintiff prior to the impact.

The first defendant also said that by the time she got anywhere near the rear of the bus it was obvious to her it was a school bus as distinct from a bus on another route and that the (40 km/h) speed sign on the rear of the bus was obvious to her before she reached the rear of it. She thought that there was about a metre between the passenger side of her vehicle and the driver's side of the bus. She had no recollection of hearing a horn sounding at any time. Nor did she recall seeing amber lights flashing at the rear of the bus.

Exhibit B was a statement given to police by the second defendant on the day of the accident. He was then 16 years of age and had been learning to drive for the previous four months. The first defendant is his mother and was teaching him to drive when the accident occurred.

The second defendant said that at about 3.15pm he commenced to drive from Palm Beach High School in Kingscliff. As he was driving along Wommin Bay Road he noticed that there was a school bus behind him. He stopped to let his sister out for hockey practice and recommenced driving south along Kingscliff Street at about 3.40pm. The bus went past. He subsequently noticed that the bus that had been behind him had pulled over in Kingscliff Street ahead of him. He commenced to overtake the bus " making sure it was safe to do so ".

The second defendant said that as he was at the front of the bus he saw a green flash to his left hand side. He swerved away from it but it still hit the passenger side of the car. The second defendant said that he was a little confused about what happened and thought he had " just clipped someone, but wasn't sure ". The first defendant told him to pull over, which he did. He noticed that the windscreen had been smashed and that the nearside external mirror was broken. He got out of his car ran back towards the bus. He saw a young person on the ground. The second defendant estimated his speed prior to the accident at 40 km/h. The road was dry and it was daylight. He said " I did not see this young person until he ran into the side of the car ".

The second defendant said that his first recollection of seeing the bus after it had overtaken him was when it stopped at the bus stop. Although he had been travelling at approximately 60 km/h further north in Kingscliff Street, by the time he reached the rear of the bus he had slowed to a speed of 40 km/h. He gave the following evidence in chief: "Q. What was the state of your knowledge as a driver at that time in relation to any requirements binding on you as the driver of a vehicle overtaking a school bus with appropriate signage and warning on? What was your understanding of that? A. That there would be kids around and that, well, I was taught that they would cross behind a bus. Q. What about the speed of the vehicle that you are driving? What was your understanding of what was required as far as that's concerned? A. I had to be going 40 kilometres per hour. Q. Not more than 40 kilometres per hour? A. No. Q. Can you now recall how far it was before you got to the rear of the bus that you reached the speed of approximately 40 kilometres per hour that you have given evidence about? A. No, I can't remember."

The second defendant said that he was able to go past the bus without crossing the centre line on the roadway. He was closer to the centre line than to the bus. He confirmed during his evidence that the first thing that he noticed was the "green flash" to his left hand side and that when he observed it the " back of the car was probably level with the front of the bus ". He said the green flash appeared " very quickly ". He thought that the direction of travel of the green flash was at right angles to the direction he was travelling. At no stage before he saw the green flash did he observe any "pedestrians" to have alighted from the bus.

He confirmed during cross-examination by Mr D Campbell of Senior Counsel who, with Mr McGillicuddy of counsel, appeared that the plaintiff, that he saw no child walking along the grass verge to the left of the bus, either behind it or to the front of it. He had no memory of seeing any flashing yellow lights at the top of the bus and no memory of seeing any signs on the back of the bus. He agreed that the bus was at least several hundred metres in front of him when he first saw it and that it took at least 30 seconds for him to reach it from that point. In all that time he saw no children on the kerb beside the bus.

The second defendant gave the following specific evidence: "Q. You travelled along that street at about this time on most school days? A. Yes. Q. You had seen yellow buses with school children on them at about that time as a matter of frequency? A. Yes. Q. You knew from your general driving along this street at about that time that the purpose of the bus pulling over was to let children off? A. Yes. Q. In the morning the bus picks them up, correct, and in the afternoon they let them off? A. Yes. Q. So when you saw this structure ahead of you, you knew that the likely purpose for it being stationary at the kerb was to let children off? A. Yes. Q. And in fact I suppose you had seen a school bus letting children off at that very spot on prior days? A. Maybe. Q. And you had seen in the course of your driving over the preceding weeks and months at about 3.30 when buses were letting children off, that it included very young children? A. Yes. Q. The younger the children, the shorter they are, correct? A. Yes. Q. The harder they are as a driver for you to see them? A. Yes. Q. And from your, I think you already mentioned in your evidence that from your state of knowledge at the time you knew that there were likely to be kids around the bus? A. Yes.

He gave the following evidence shortly thereafter: "Q. I suggest you must have been concerned about where the children were that were getting off the bus? A. Yeah. Q. Was that something that you are actually thinking of to this day? A. Yeah. Q. Were you looking for children on the side of the road? A. I was keeping my eyes open for everything. Q. But in particular were you looking to see where these children you couldn't see were? A. Yes."

The second defendant was then asked some questions about information contained in the handbook he was given when he obtained his permit to drive as a learner. A question on that topic then led into the following evidence: "Q. You knew that that meant in certain prevailing situations it was necessary for you to drive under the prescribed speed limit? A. Yeah. Q. I mean, the prescribed speed limit was a maximum speed at which you were allowed to do things, wasn't it? A. Yes. Q. And if there was a particular situation that made it appear that there may be something unexpected in front of you, you should slow even further, shouldn't you? A. Yeah. Q. What you have told us is that your understanding was that because there is a sign of 40 on the back of the bus the maximum speed you are allowed to go past the bus was 40. That's correct, isn't it? A. Yes. Q. You would except [sic accept ], wouldn't you, that there are situations where it is appropriate for you to go at some speed less than that, wouldn't you? A. Yeah. Q. And what I suggest to you is that one of those situations is one where you know children are being let off and you have not been able to see them so you don't know what they are doing. You would agree with that, wouldn't you? A. Yeah."

Finally, for present purposes, the second defendant was asked the following question: "Q. Being a driver who did not have a lot of experience and who was still learning skills, don't you agree you should have travelled at less than 40 kilometres per hour when you went past this bus? A. No."

The fourth defendant had been a bus driver employed by the third defendant, or its predecessor, since approximately 1993 or 1994 and ceased that employment in approximately 2004. He gave evidence that by April 2001 he had been driving the plaintiff’s afternoon bus route for something in the order of two and a half to three years. His shift commenced at 2.40pm. The plaintiff got off at the same bus stop each day and did so in accordance with his normal pattern on the day of the accident.

On that day the plaintiff alighted from the bus with Tim Paine. Before doing so he had been seated directly behind the fourth defendant in a seat that had been assigned to him in circumstances that are referred to in more detail later in these reasons. The plaintiff was still seated when the bus came to a stop and the doors opened. The plaintiff then picked up his bag and went to the side of the seat in the aisle. The fourth defendant said, " Wait until the bus drives off and watch the road ". The plaintiff then " stomped off the bus ", although this was at what the fourth defendant described as " just the normal speed ". He stepped onto the grass verge, turned to the right and started to walk south. As he walked away from the bus, the fourth defendant closed the door.

At this point the fourth defendant checked his mirror and saw a car coming up on the right-hand side of the bus from behind. He said, " I was in a position not to pull out because the car was too close so I had decided at that point to let the car go past ". He then gave the following evidence: "A. The flashing lights were still going, my right-hand blinker was going and as the car drew almost level with the front, the front of the car was - oh, sorry. The front of the car was almost level with the mirror. . . I saw the car go past and at the same time I saw [the plaintiff] fold [sic "bolt"] across the road and I put on the air horn and at the same time he hit the car. I seen this kid flying through the road, through the air. I immediately picked up the radio and called "base run 144, emergency, emergency, I need an ambulance at Kingscliff and Surf Street immediately. Repeat immediately." I dropped the, I dropped the radio and opened the doors and ran out to try and assist [him]." He later said that the horn sounded "instantaneously", clearly intending by that expression to convey that it occurred simultaneously with the collision.

The fourth defendant gave evidence about his observation of the plaintiff's journey after he left the footpath. Part of that evidence was as follows: "Q. You said you saw Cosmo bolt from the kerb? A. Yes. Q. The word bolt is a bit like stomp, it might mean something different to different people. Can you tell us what you mean by the word bolt? A. Well, it was a very fast run. Q. Did you see what path Cosmo took from the kerb vis-a-vis the bus? A. He went on an angle. Q. How would you describe the angle compared to the front of the bus? A. Basically probably on maybe 11.00 o'clock."

This description given by the fourth defendant was subsequently clarified in the evidence to be a reference to an angle of 30° south of the front alignment of the bus that was then approximately east/west or at right angles to the direction of the road. In a statement given by the fourth defendant to the police at the scene he said, "[ the plaintiff ] walked in a southerly direction for I guess one to two metres " and " I then saw him run across the road from the eastern footpath ".

Mr Campbell cross-examined the fourth defendant about this as follows: "Q. You remember that once Cosmo got down to ground level he took a further step away from the kerb on to the grass, is that right? A. Yes. Q. So that he was a distance away from the side of the bus on that grass strip? A. Yes. Q. Are you able to say how far from the side of the bus he had moved? A. Oh, probably, I'd say probably a metre. Q. Maybe a bit more? A. No less, no more. Just an estimate. Q. Then you say he turned to the right? A. Yes. Q. And took a number of steps forward, is that right? A. Started to walk. Q. You did not count the number of steps he walked? A. No. Q. He could have taken three, four, five steps? A. He was possibly level with the front of the bus."

The following passage of cross-examination occurred a little later: "Q. You saw him for a split second, didn't you, out of the corner of your eye? A. Out of the corner of my eye, yes. That is because-- Q. It is an impression rather than an observation. Something is flashing out of the corner of your eye, you got an impression of him running rather than make an observation? A. No, it was an observation. I saw him, I saw him run. Q. How long did you see him for? A. What, till he hit the car? Q. From when you say you first saw him running until he hit the car, how long did you see him for? A. Golly, how long does it take to run two and a half metres, three metres? Two seconds, three seconds. Q. So the distance you say you saw him for was two and a half to three metres? A. Estimate, yes. Whatever the, whatever the impact of the car was from the-- Q. A couple of paces, is that right? A. Couple of paces."

The fourth defendant later said that he saw the plaintiff " in full flight running into the car ", which he estimated to be over a distance of two and a half to three metres. Exhibit 10 clearly depicts the fourth defendant's observation of the furthest point south that the plaintiff reached before he left the grass verge and headed across the road. Allowing for the difficulties associated with interpreting photographs, and having regard to judicial pronouncements about the wisdom of doing so unaided by expert opinion, that point appears to be somewhere between one and two metres south of the front of the bus. This is apparently confirmed by markings placed by the fourth defendant on photograph 6 in exhibit F, which depicts the direction and distance of travel, otherwise described as "the line of travel", taken by the plaintiff from the kerb to the point of his collision with the car. He agreed with the first defendant's estimate that the second defendant was driving somewhere between 30 and 40 km/h.

Isaac Cottrell was 12 years old on the day of the accident and knew the plaintiff as one of his neighbours. He remembered the day when the plaintiff had his accident in Kingscliff Street. He gave evidence that he was standing on the footpath on the south-west corner of Kingscliff and Ocean Streets outside his house " waiting to catch a glimpse of some girls that might have been on the bus from another school ". He saw the bus pull into the bus stop, and he saw the impact between the plaintiff and the car.

Mr Cottrell said that the bus had been stationary at the bus stop before the accident for approximately 30 to 40 seconds. He described what he saw as follows: "Q. Did you see Cosmo at any time before the impact between he and the motor vehicle? A. I did. Q. What, if any, observation did you make of him in the time that you saw him? A. He seemed to hurriedly run in front of the bus sort of, like a half jog, skip sort of thing. Q. Was he carrying anything? A. Yeah, a backpack."

A little later he gave the following evidence: "A. ... Yeah. He just ran out in front of the... Q. Do you remember the actual movements from the bus before he got on to the roadway or not? A. Oh, no. Q. Do you remember when he was on the roadway the approximate direction of travel in relation to the kerb that he was adopting? A. I'd say 45 degrees or something. Q. When you say 45 degrees do you mean 45 degrees pointed towards the area you were in, or away? A. That's what I mean, so south-west. Q. As it were making a bee line for the corner where you were? A. Yeah. Q. Do you remember how far in front of the bus he was when he started to adopt that 45 degree approach? A. A metre, about a metre I'd say."

This evidence compares favourably with a version of what this witness said he saw that he related to a policeman not long after the accident. That version contained the following description: "I stood on the edge of the footpath and was waiting for a bus to go until I crossed the roadway. It was a Surfside bus and I saw [the plaintiff] get off the bus, walk a short distance on the grass towards Ocean Street. Then he went in a slow jog across the front of the bus on to the roadway. I saw [the plaintiff] walk into the side of a white small car that was travelling towards Ocean Street."

With the exception of the second defendant's car, Mr Cottrell had no recollection of other cars travelling in either direction at that time, although a little later he agreed that there would have been. He agreed that everything happened fairly quickly. He had no recollection of the plaintiff stepping off the bus but he did have a recollection of him standing on the kerb. The plaintiff was about a metre in front of the bus when he stepped off the kerb. He described the plaintiff's movement as " jogging " but not a full run. He moved at an angle to the kerb. He described the time that it took in the following evidence: "Q. Do you agree that it was a split second or a second or so between the time he stepped off the kerb and when he came into the side of the car? A. Yeah, pretty much a split second, yeah, as far as it takes to travel across the front of the bus sort of thing, so a second or so."

Mr Cottrell said he saw the plaintiff flip into the air a couple of times and land on the road. He did not hear any noise before the accident happened. He was asked whether or not he observed the second defendant's car to slow down as it came to a position level with the bus. He replied, " No, I believe it was going the same speed ". He agreed that, " everything appeared normal until [ the plaintiff ] accelerated off the kerb ".

He was asked further questions about his observations of the speed of the second defendant's vehicle. That evidence was as follows: "Q. Although you did not have a licence at the time you thought it was about 50. Do you agree it might have been 40 kilometres an hour? A. Yes, it could have been. Q. And it may have even been a bit less than that? A. Anything under 50 kilometres I'm assuming."

Having regard to this evidence, the first and second defendants submitted that a trigonometric calculation drawing upon distances that were capable of being derived from it, demonstrated that the point of impact between the plaintiff and the second defendant's car was 3.14 metres from the front of the stationary bus. This was arrived at taking a starting point for the plaintiff on the eastern kerb one metre south of the front of the bus and an angle of travel of 30 degrees, together with an assumed straight line distance from the nearside of that vehicle to the eastern kerb of somewhere between 3.6 metres (according to Mr Griffiths) and 3.8 metres (according to Mr Johnston), or approximately 3.7 metres. This calculation appears roughly, but reasonably, to conform to the eyewitness observations of distance and time over which and within which the plaintiff travelled on the roadway. It is also broadly consistent with evidence given by Sen Const Kelly, whose measurements from an identified power pole produced a point of impact in the order of 2.7 metres from the front of the bus. Mr Johnston, in contrast, estimated that distance to be approximately 4.8 metres.

The plaintiff's pleaded case against the first and second defendants alleged a failure to keep the motor vehicle under control, or to sound any warning of its approach. It was also alleged that the second defendant failed to apply the brakes in time to avoid impact with the plaintiff, to steer or control the motor vehicle so as to avoid the collision or to observe the presence and position of the plaintiff on the roadway. The principal allegations of negligence, however, were that the second defendant drove at a speed that was excessive in the circumstances and that he failed to keep a proper lookout.

It was submitted on behalf of these defendants that I should find that the second defendant was not driving in excess of 40 km/h. It was submitted that the approximate speed of the vehicle was 30 to 40 km/h and that there was no evidence to support a conclusion of a speed greater than that. The former range is derived from the evidence of the first defendant referred to above. The fourth defendant agreed with this estimate. The second defendant recalled that he " had to be going " 40 km/h. Mr Cottrell estimated that the speed might have been as high as 50 km/h. The plaintiff submitted, " the best evidence on the issue [was] the representation of the driver , [ namely ] approximately 40 km/h ". The reference to "approximately" is presumably a reference to that word used in the last question quoted at par [17] above, with which the second defendant did not specifically disagree. It also accommodates the evidence of both the first defendant and Mr Cottrell, although the latter was only 12 years old at the time with no obvious experience to inform a reliable estimate of speed. Mr Deakin emphasised that it was not put to the second defendant that he was, or might have been, travelling faster than the speed limit.

The defendants submitted that the allegation of a failure by the second defendant to keep a proper lookout should be rejected out of hand because it was never put to either the first or second defendant that they should have seen the plaintiff at an earlier time and reacted to him. If the plaintiff was to allege that the second defendant failed to keep a proper lookout or failed to observe the plaintiff earlier than he did, it was incumbent upon the plaintiff to put the proposition squarely to the owner and driver of the vehicle who were present at the scene in order that they could in fairness deal with the allegations: Browne v Dunn (1893) 6 R 67. A breach of the rule has been held to preclude a party from putting forward a case inconsistent with the unchallenged evidence in cases such as Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362; Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219 at 225 and 236; Payless Super Barn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556. For the reasons discussed below, it is unnecessary to resolve this particular controversy.

In my opinion the evidence compels a finding that the second defendant was travelling at approximately 40 km/h at the time of the collision. He gave evidence that he was driving at that speed and was not moved from that position in cross-examination. In addition, he was extremely, and consistently, candid in his responses to questions put to him in cross-examination, tending to my observation to suggest truthfulness in all other respects. Whether or not he was travelling in excess of that speed or less than that speed, as falling within the approximation, is impossible to say. It does not make a difference if the speed of the vehicle was so close to that speed that no minor variation from it either way is demonstrably significant to the outcome. No evidence, expert or otherwise, attempted an analysis of reaction times in less than 10 km/h gradations. I am satisfied that he was not travelling at 50 km/h, as the only evidence to suggest such a speed is in my view inherently unreliable. I am also satisfied that he was not travelling at 30 km/h as only the first defendant suggested such a possibility and then only as part of a range that included 40 km/h. The fourth defendant's acceptance of that range is to my mind of little significance having regard to the fact that he was observing the speed of the vehicle as part of a relatively complex, if arguably habitual and automatic, series of actions that he described, but more importantly he was doing so through his side rear view mirror. His view was to that extent restricted and he did not have the advantages otherwise available to witnesses with a direct view.

There was in the end no significant dispute that emerged in the course of submissions about the speed, so that a consensus, if not an actual agreement, appeared to have been reached. In any event, the plaintiff did not put his case upon the basis that the second defendant was exceeding the speed limit, relying instead upon a submission that even that speed was too fast in the circumstances. Moreover, the first and second defendants did not seek refuge from the plaintiff's principal argument (i.e. that there was a particular perceivable risk that the first defendant should have taken into account but did not) behind an assertion that the speed of their vehicle was so far below 40 km/h theoretically to have taken account of that particular perceivable risk. In that sense the relevant protagonists unambiguously put their respective eggs in the same 40 km/h basket.

The first and second defendants relied as a starting point upon what the High Court had to say in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at par [13] as follows: "[13] . . .Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. To offer, as the majority in the Court of Appeal did, its consolation that the appellant does not bear any moral, as distinct from legal, responsibility for what occurred is to obscure that issue."

In addition, the first and second defendants drew attention to what was said by Heydon JA in Knight v Maclean [2002] NSWCA 314 at pars [61] to [69]: "[61] It is tempting but erroneous to compare closely the facts of cases decided in the past with the facts of the case calling for decision. In Tidy v Battman [1934] 1 KB 319 at 322 Lord Wright said: "It is unfortunate that questions which are questions of fact alone should be confused by importing into them as principles of law a course of reasoning which has no doubt properly been applied in deciding other cases on other sets of facts." In Teubner v Humble (1963) 108 CLR 491 at 503 Windeyer J said: 'decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. That would lead to the substitution of a number of rigid and particular criteria for the essential flexible and general concept of negligence.' [62] However, the arguments for the plaintiff take insufficient account of the principles applied by the High Court in Derrick v Cheung (2001) 181 ALR 301, as distinct from the precise facts of that case. In that case the trial judge and the majority of the Court of Appeal found a driver negligent when the driver collided with the plaintiff, a small child who had darted out between parked cars. The High Court reversed that finding. In Derrick v Cheung it was reasonably foreseeable, in the sense that it was a possibility, that a small child might be on or near the road. The trial judge found that the location (near shops and houses) and time (9am on Saturday 17 December, shortly before Christmas) "should have alerted [the defendant] to the possibility that a small child such as [the plaintiff] might be on or near the road". [63] In approving Davies AJA's dissenting judgment in the Court of Appeal, the High Court was approving his approach. He said (at [10]): '. . . there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50 km per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption.' [64] That approach in part centred on the fact that though the appearance of a child may have been reasonably foreseeable, there was "no particular perceivable risk which the [defendant] should have taken into account but did not", "no particular danger was observable", and "no particular danger was apparent". In this case, too, the movement of pedestrians at some speed across the road was reasonably foreseeable, but the appearance of the plaintiff at a fast walk was not a particular risk or danger which was perceivable, observable or apparent. [65] Another theme in the reasoning of Davies AJA was the fact that the defendant's driving satisfied conventional criteria for safe driving – a modest speed, a keeping up with the general flow of traffic which was itself at a modest speed, the maintenance of a reasonable distance from the vehicle in front, and the keeping of a proper lookout. The High Court in effect held that a proper lookout was being kept despite the defendant's concentration on looking straight ahead and on failing to realise that the view to her left was obscured, with consequential effects on her ability to see the plaintiff in that case emerging through the row of parked cars adjoining the lane which the defendant was driving along. [66] So here, the defendant's driving was intrinsically careful. He was not exceeding the speed limit; he was moving with the traffic flow; there is no suggestion he was not keeping a proper distance from the car in front; if he did not see the start of the plaintiff's journey through a failure to look to the left, or a failure to appreciate the extent to which his view might be blocked, he was in no worse a position than the defendant in Derrick v Cheung , and indeed in a better position because of the existence of lane two to his left. He was entitled to drive with his eyes ahead of him until he noticed something to the left which called for greater concentration on the left. There was nothing on the left calling for greater concentration until the sudden emergence of the plaintiff, and that was too late to give the defendant any opportunity to avoid the collision. A finding that the defendant was liable would be to create a form of strict liability, not to recognise a form of liability in negligence. [67] The trial judge's conclusion of liability in this case rested on the proposition that the defendant was obliged to "drive in anticipation of a pedestrian crossing the road in such a fashion as to require him to adjust his speed downwards if he and the pedestrian were to continue". That would have called for a very low speed indeed. Indeed, if the defendant was obliged to drive in anticipation of the emergence of pedestrians like the plaintiff at a fast walk, he would also have been obliged to drive in anticipation of pedestrians emerging at a run, which would call for a lower speed still. Speeds of such slowness are incompatible with the reasonable use by motorists of Parramatta Road, which is a substantial highway between the centre of the city of Sydney and the city of Parramatta. [68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey. Yet in the circumstances of the present case the trial judge's test would entail that duty. [69] The plaintiff bore the burden of proving negligence on the part of the defendant. This meant that in substance the plaintiff bore the burden of proving that the defendant failed to keep a proper lookout and of proving that if he had kept a proper lookout, he would have seen the plaintiff in sufficient time to avoid the collision. These burdens could not be discharged by the mere fact of the collision. To the extent that the nature of the locality at the time of the accident called on the defendant for an explanation as a practical matter, an acceptable explanation consistent with keeping a proper lookout, for the defendant seeing the plaintiff only at the last moment may be inferred from the circumstances. The circumstances supporting that inference include the absence of anything in particular to put the defendant on notice of the need to guard against pedestrians suddenly crossing the road, the nature of Parramatta Road as a busy main road calling for close attention to the behaviour of vehicles in front, and the character and speed of the defendant’s driving, in relation to other vehicles, as appropriate to the traffic conditions."

In Dennis v Keep [2002] NSWCA 227, Foster AJA (with whom Heydon JA and Bergin J agreed) said at par [18]: "[18] . . . Indeed in the recent decision of the High Court in Derrick v Cheung . . . it is indicated, in my view, that, in cases of this kind, a common sense overall appraisal of the situation confronting a motorist, travelling within the appropriate speed limits, when a pedestrian enters his or her line of travel, is required, rather than an over-meticulous evaluation of what might have occurred if he or she had been driving at a lesser speed.

Finally on this point I was referred to the words of Hayne J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [126] in the following terms: "[126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment 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."

The plaintiff relied upon a line of cases in support of the contention that there was a perceivable risk that young children might be in the vicinity of the school bus and that the second defendant was aware of that risk but failed in the circumstances to adjust his speed in order to take account of it.

The first case relied upon was Mye v Peters and Another (1967) 68 SR (NSW) 298. That was a case in which the plaintiff was aged five years and eight months at the time of the accident. He was injured when he dashed across the road after alighting from a school bus and was hit by the defendant’s vehicle. The skid marks left by the latter on the bitumen of the road measured some sixty-six feet. The driver was aware that the bus was a school bus and that it had stopped to allow children to alight. The trial judge held that the defendant was negligent and that the plaintiff was not guilty of contributory negligence. He found a verdict for the plaintiff.

Herron CJ said this at 300: "However, the learned trial judge summed up the matter by alluding to the fact that the semi-trailer driver knew for a considerable distance back from the scene of the accident, some eight hundred yards or more, that this bus was approaching a bus stop, that it was a school bus, that it was the time for bringing the children home from school and the place where the accident happened was a small country centre known as Kingscliff near Murwillumbah and in all the circumstances the semi-trailer driver must have been aware of the foreseeable risk of the emergency arising when this school bus stopped to decant its juvenile passengers. In point of fact the plaintiff was only five years and eight months old at the time of the accident and the learned trial judge said that he was satisfied after an exhaustive analysis of the evidence, that in the circumstances, knowing the bus was a school bus which had stopped to discharge children, the driver failed to exercise reasonable care and skill in passing the bus in that he was travelling too fast; in that he failed to sound the horn as a warning to children whom he knew, in the nature of things, were likely to scamper across the road; in that he failed to reduce his speed at all, or sufficiently, to enable him to keep an eye for and cope with any such emergency, and in that he was quite unaware of even the approximate distance in which he could pull up with safety with all his breaks in any emergency. The learned trial judge came to the conclusion that by reason of all the above circumstances he failed to keep his vehicle under proper control and any lookout by him was not in the circumstances proper or adequate."

Sugarman JA dealt with the issue as follows at 303-304: "The first question, I think, depends essentially upon the answer one gives to the question whether it was reasonably open to anticipation that some child would dash out in front of the stationary bus. This in my opinion was a contingency which a reasonably prudent driver of a vehicle proposing to pass the stationary bus would have foreseen and guarded against . . . The bus was known to the driver of the defendant’s vehicle, the semi-trailer, to be a school bus. It had been bringing children home from school, it had been under observation by him for about half a mile before the accident and it was known to have stopped for the purpose of letting off the children returning home from school. The driver had not had any experience of pulling up the semi-trailer in an emergency. . . For myself I would say a want of due care was exhibited by the driver of the semi-trailer in the circumstances, in passing the stationary bus without warning at a speed somewhat in excess of fifteen to twenty miles an hour and that this was the cause of the injury to the plaintiff child. . . But very young children remain very young children, notwithstanding indoctrination. Adults are apt to be appalled by the disregard which they often manifest for their own safety and the needless risks which they take. While on the one hand it may be suggested that they do not meet with more harm because they lead a charmed life, the other and preferable view of the matter is that they are greatly dependant upon the solicitude which is shown for their safety and welfare by adults doing in their vicinity things which might endanger them."

In Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369, the defendant driver of a motor vehicle was proceeding on a straight country road. He saw two young persons on trail bikes and eased up. She did not know if they had seen her. As she was about to pass them one of them darted across the road in front of her and was injured. The trial judge held that the defendant had no chance of avoiding the plaintiff. The plaintiff appealed.

Under the heading "Duty of care to children and young persons", Kirby P said that following at 372-374: "One special circumstance which the courts have determined to be relevant to the standard to be expected relates to the cases in which it has been held that the driver should anticipate the presence of young children near the highway on which he or she is proceeding and take particular care in such circumstances. In a series of cases, this court (and its predecessor) have stressed the special care which drivers must take when they know, or should know, that children are near the highway. The obligation has been explained in terms of the imputed knowledge of the tendency of children to act in ways which adults might regard as irresponsible."

In Stocks v Baldwin (1996) 24 MVR 416, a pedestrian was struck down by the defendant who was driving his car at about 40 km/h when, after crossing the median strip, she moved through banked up vehicles in the middle lane into the kerbside lane. The street was busy having three lanes on each side of the median strip some 40 metres from traffic lights. The defendant stopped about four metres from the impact. The trial judge found that the defendant was negligent because he was travelling at excessive speed in the circumstances. He reduced the plaintiff's damages by 40 per cent for her own contributory negligence upon the basis that she did not check or did not check adequately to see whether it was safe to proceed from the middle lane into the kerbside lane. The defendant driver unsuccessfully appealed to the Court of Appeal. Mahoney P said this at 419: ". . . If he had been travelling more slowly, it is likely that he would have stopped in time. But, however that be, I think that the possibility of a pedestrian doing what the plaintiff did was such that a reasonable person would have accepted that he should drive more slowly, at such a speed as to be able to cope with such an emergency if it arose. (c) It follows from what I have said that speed contributed to the occurrence of the accident. Mr Maconachie's submission was, I think, essentially that it is what the plaintiff did which caused the accident and that, whatever the defendant's speed, the accident would have occurred. The trial judge did not form that conclusion. What the plaintiff did was foolish. But I am not satisfied that, had the defendant been driving at a speed appropriate to the circumstances, he could not have avoided striking her. And, for the reasons to which I have referred, it was because of the speed at which he was travelling that he was not able to stop in time."

In Gunning v Fellows (1997) 25 MVR 97 the plaintiff was a 12 year old boy who rode his bicycle down a driveway onto the road. The defendant was passing with the driveway on his left. The defendant was able to see the plaintiff from about 80 metres before passing the driveway. The plaintiff rode into the defendant's car on the front left-hand side. The plaintiff was seriously injured. The defendant did not see the plaintiff until the impact. The Master found the defendant to have been negligent and assessed the plaintiff's contributory negligence at 25 per cent. The defendant appealed.

Beazley JA said this at 100: "In this case the respondent, although not a very young child, was still not quite 12 years of age. The appellant was able to see him at least from about 80 m 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."

Next, in Rowes Bus Service Pty Ltd v Cowan [1999] NSWCA 268, the plaintiff/respondent was travelling home from school on a Rowes' bus along Richmond Road, Blacktown at approximately 3.30 pm. The road ran east-west and consisted of a four lane dual carriageway in two directions that was divided by a median strip. The respondent lived in Tallanganda Drive, on the northern side of Richmond Road. The bus service terminated on the southern side of Richmond Road, near Hill End Road. When the bus reached its final stop in Richmond Road, all passengers alighted at what was an unmarked stop. A number of adults and school children went to the rear of the stationary bus, intending to cross over Richmond Road. The respondent moved to the front of the bus, which occupied the first lane of traffic. She crossed in front of the bus and, upon entering the second lane of traffic, was hit by a motor vehicle driven by Mr Sufong. She suffered brain damage and a broken collarbone. She was seventeen years of age at the time of the accident.

The trial judge found both appellants liable in negligence and apportioned liability equally between them. He assessed the respondent's contributory negligence at 20 per cent, concluding that she was walking in front of the bus and not running as argued by the appellants. A verdict for the respondent in the sum of $989,600 was entered.

Stein JA dealt with the matter at pars [36] to [40] as follows: "[36] The trial judge's finding of negligence by Mr Sufong was confined to his proceeding at a speed which was too fast in the circumstances. His Honour found that the van driver reduced his speed from 70 to 80 kph to 40 kph when he saw the bus stationary at the side of the road some 100 m distant. He maintained that speed until the plaintiff ran out in front of the stationary bus, when he applied his brakes. When this occurred the plaintiff was obviously too close for the accident to be avoided. There was evidence that the van would have had to slow to 15 kph (if the plaintiff was walking) or 5 kph (if the plaintiff was running) for Mr Sufong to avoid colliding with her. [37] It must, of course, be accepted that a driver must exhibit special care or drive defensively in the presence of pedestrians, especially children, see Stocks v Baldwin (1996) 24 MVR 416; Yu v Yu (1998) 26 MVR 509 and Mitchell v GIO (1992) 15 MVR 369. [38] Stocks v Baldwin in particular provides a helpful discussion on the obligation of drivers to pedestrians who may suddenly step out from behind a stationary vehicle into the path of an oncoming vehicle. Mahoney P said: 'In the "balancing" process to which Mason J referred, [in Wyong Shire Council v Shirt] at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger. The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians sometimes act carelessly. I do not mean by this that they do so more often than not. But, in my opinion, they do so with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a "far-fetched or fanciful risk" which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account. Mr Maconachie QC not merely submitted that a prudent driver may so drive that there are risks of injury; he submitted that the court should accept that a prudent driver may determine what he should do upon the assumption that pedestrians will obey the law and will take sufficient care for their own safety. In my opinion that puts the matter too high in favour of the defendant driver.' [39] As I have said, the trial judge found that Mr Sufong reduced his speed to 40 kph upon seeing people, including school children, on the roadway at the rear of the bus. It must have been obvious to him that they were waiting for the opportunity to cross the road. If one of them ran out in front of his vehicle an accident was inevitable. This was because at 40 kph he could not have stopped in time so as to avoid an accident. His Honour was correct to observe that having seen the children and mothers gathered behind the bus Mr Sufong nevertheless proceeded at 40 kph past the bus knowing and admitting that there was a possibility that children could emerge from the front of the bus'. [40] In my opinion, the trial judge was entitled to find on the evidence that 40 kph was a speed which was too fast in the circumstances. Travelling at such a speed meant that Mr Sufong could not stop in time to avoid colliding with any child running across the road from either end of the bus. He said as much in his evidence, see Black Appeal Book 239 L - N. Moreover, Mr Sufong made it plain that he believed that the setting down of passengers by the bus at this particular spot created a dangerous situation for pedestrians (including school children) and for motorists alike. Clearly he appreciated the risk of people, perhaps children, coming out suddenly into his path. In arriving at the conclusion that his Honour's finding was one which was open on the evidence, I take particular account of the factors relevant to the balancing process mentioned by Mahoney P in Stocks v Baldwin ."

The plaintiff sought to distinguish Knight v Maclean (supra) upon the basis that the appearance of the plaintiff in that case at a fast walk was not a particular risk or danger that was perceivable, observable or apparent. He also embraced what was said by the High Court in Derrick v Cheung (supra) at par [11] as follows: "[11] . . . Nor was it a case where the incident occurred near to a school or bus stop or other place where reducing speed or special caution in driving might be required or prudent."

The plaintiff also relied upon several passages appearing in the judgment of McColl JA in Tobin v Worland [2005] NSWCA 188 at pars [40] to [46] as follows: "[40] The qualification expressed in Derrick v Cheung (at [11]) that the incident in that case did not occur "near to a school or a bus stop or other place where reducing speed or special caution in driving might be required or prudent" reflected the long established proposition 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": Gunning v Fellows (1997) 25 MVR 97 at 98 per Beazley JA (with whom Mason P and Cole JA agreed). The greater standard of care and caution demanded of motorists in such circumstances recognises the "well known propensity" of children to "move suddenly out onto the road": Settree v Roberts (per Hope JA in a passage which does not appear in the report of the case at [1982] 1 NSWLR 649 but was quoted by Clarke JA in Lolomanaia v Rush (at 133)). [41] As Kirby P said in Mitchell v Government Insurance Office of New South Wales at 372 the special care drivers are required to take when they know, or should know, that children are near the highway "has been explained in terms of imputed knowledge of the tendency of children to act in ways which adults might regard as irresponsible". [42] Both these passages were cited by Clarke JA in Lolomanaia v Rush (at 133) where his Honour also referred to Sugerman P’s judgment in Mye v Peters (1967) 68 SR (NSW) 298 which, his Honour observed, emphasised: '[t]he knowledge that adult people have of the behaviour of children, including the propensity of young children to act with extreme disregard for their own safety.' [43] The High Court's approval in Derrick v Cheung of Davies AJA's dissenting judgment in the Court of Appeal accepted, as Heydon JA noted in Knight v Maclean (at [63] – [64]), the significance in cases concerning collisions between motorists and pedestrians of there being a "perceivable risk" which the motorist was required to take into account but did not. In such circumstances, it was appropriate for the High Court to conclude that although the motorist in that case was looking straight ahead and did not realise that the view to her left was obscured so that she was unable to see the plaintiff emerging through a row of parked cars adjoining the lane along which the defendant was driving, that conduct was not unreasonable in the circumstances. [44] The facts in this case are entirely different. The appellant was driving along a quiet residential street at midday on a Sunday. The weather was fine. She was aware that children played in the area, frequently on the roads. Moreover, before she had travelled very far along her journey she saw a small child standing on the road behind a car. She was aware that that child’s presence might mean that other children were present but unseen. She was also aware of the propensity of very young children to act unpredictably. There was no other traffic which required her attention. [45] It is clear from her 1992 statements as well as the extracts from her evidence at trial which I have set out, that there was a "perceivable risk" which the appellant was required to take into account, but apparently did not, that not only Courtney, but also another child might emerge from the area behind the Holden. She was also required to be aware that such a child might behave in the unpredictable and irresponsible manner to which children’s youth and immaturity impels them. In such circumstances, unlike in Derrick v Cheung , it was not reasonable conduct on her part to focus her "full attention" on the road ahead, as she said she did in her statement in July 1992. Rather, as the primary judge found, it was in my view incumbent upon her to pay particular regard to the area where Courtney was standing and to be alert to the risk that a child, whether it be Courtney or some other child which she accepted might be in the vicinity but unseen, might suddenly emerge into a position of danger. [46] In my view, the primary judge's conclusion that had the appellant kept the area to the rear of the Holden under observation she could not have failed to see the respondent as he emerged from behind that vehicle was entirely open to him. It must be borne in mind that prior to the point of impact the respondent had crossed the oncoming traffic lane as well as the lane in which the appellant was driving and nearly reached the other side of the road. It was easy to understand, in such circumstances, why the appellant was unable to offer any explanation for not seeing the respondent earlier than she did. This was not a case where the circumstances of the accident afforded the appellant an acceptable explanation for not seeing the respondent consistent with keeping a proper lookout: cf Knight v Maclean at [69]."

A very significant factor at play in the present case is the acknowledgment by the second defendant that he was aware of the need to take special care in an area where it might reasonably be anticipated that young children may be present. He travelled on the street in question on most days at that time. He had seen school buses with children on them frequently. He knew that school buses pulled over to let children off. He knew that the bus that he saw on this day was in all likelihood doing just that. And he knew that there were likely to be children around the bus.

He had been taught that children could do unpredictable things. He agreed that he was concerned about where the children were who were getting off the bus. He agreed that he was particularly looking to see where these children were. The second defendant also agreed that although 40 km/h was the prevailing maximum speed to pass a stationary school bus, there were situations where it was appropriate to go at some speed less than that. He specifically agreed that one of those situations was where he knew young children were being let off a bus but where he had not been able to see them and so did not know what they were doing. He did not, however, agree, in the circumstances as they presented to him on this day, that he should have travelled at less than the speed limit when he went past the bus.

Not only was there a clearly perceivable risk; the second defendant actually perceived it. However, this is not a case in which the relevant failure in the light of the perceived risk can be said to be a failure to keep a proper lookout. Indeed, there is a clear explanation for the failure of the second defendant to see the plaintiff until he did so. Whatever adjective one retrieves from the evidence about the plaintiff’s speed of travel, he emerged at a rapid pace, somewhere between a fast walk and a jog, from behind the bus that wholly obscured him until almost the very instant that he collided with the car. The first that the second defendant knew of either the presence of the plaintiff on the road or of him being anywhere near the car was for all practical intents and purposes the same moment that the collision took place. In the events that occurred, the plaintiff would appear only ever to have entered the second defendant's peripheral vision. The point of impact on the side of the car and the second defendant’s description of observing a green flash appearing very quickly combine to support such a conclusion. As he said, he did not see the plaintiff " until he ran into the side of the car ". There is no dispute on the evidence that the plaintiff was never in front of the car. The plaintiff was never visible in front through the car windscreen at any stage. The first defendant's evidence of there being nothing until she saw a face in her side window is to a similar effect. It was, in her words, " immediate ". In my view, the plaintiff has not established that the second defendant failed to see anything that he should have seen. I find that the second defendant did not fail to keep a proper lookout.

The plaintiff's case was effectively limited to a proposition that the second defendant was driving at an excessive speed in the circumstances. Those circumstances include the existence of a perceivable risk that children such as the plaintiff might unexpectedly emerge from behind the cover of the bus and the second defendant's acknowledgment that he was aware of it. In such a case, so the plaintiff argued, the second defendant should have reduced his speed to below the prevailing speed limit of 40 km/h so as to ensure that in the event of the sudden emergence of a pedestrian in the way that occurred he would have been able to stop or otherwise avoid a collision. The evidence was that the accident was unavoidable at 40 km/h. The plaintiff’s expert engineer Mr Johnston agreed that this was so in the following question and answer: "Q. I put to you that this was an unavoidable accident. You agree with that proposition if the vehicle was travelling at 40 kilometres per hour, don't you? A. Yes, pretty much."

In my view the plaintiff was travelling at an excessive speed in the circumstances. I consider that this is a case in which the relevant failure in the light of the perceived risk can be said to be a failure to drive at a speed less than the applicable limit. There are a number of reasons for this. First, it is accepted that a driver must exhibit special care or drive defensively in the presence of pedestrians, especially children. This would have included reducing speed to less than the applicable limit. Secondly, there was present at the time a clear " disproportion of responsibility, control and experience, as well as knowledge of the occasional irresponsible behaviour attributed to children and known by the motoring public ". Thirdly, there was at least the significant, and recognised, possibility of the existence of children beside the road that should have stimulated the second defendant to take precautions which were neither likely to delay the traffic nor cause any other risk. Fourthly, the second defendant " nevertheless proceeded at 40 kph past the bus knowing and admitting that there was a possibility that children could emerge from the front of the bus ". Fifthly, this is " a case where the incident occurred near to a . . .bus stop or other place where reducing speed or special caution in driving might be required or prudent ". Sixthly, this is also a case " when young children [were] in the vicinity of a road or reasonably to be expected to be in the vicinity , [so that] a greater standard of care and caution [was] demanded of [the second defendant]". Seventhly, the second defendant in fact realised that there was a possibility that a young child might run onto the roadway.

As the second defendant approached the bus from some distance behind after the bus had stopped, he had an uninterrupted view of the street and the footpath. It was effectively "a quiet residential street" as described in Tobin v Worland (supra). The bus was parked only 30cm from the kerb and there was no other traffic of significance travelling upon the road in either direction. The only area of which the second defendant had no view was that area obscured by the bus itself. The fourth defendant had activated his flashing lights (see below) and the second defendant had slowed his vehicle in response to the fact that he knew, as the result of his own observations of a number of factors, that he was about to pass a school bus. The only thing that the second defendant did not know for certain was whether or not any passengers had alighted from the bus.

However, the fact that the bus had stopped at all was itself an unambiguous cue that it had either picked up or set down passengers at that stop. The former was unlikely given that it was in the afternoon. The latter was highly likely, as the bus would not ordinarily be expected to stop for any other reason at that time. Mr Cottrell thought that it had been stationary for between 30 and 40 seconds. The first defendant said that it was stationary the whole time that it was in her vision. This would all appear to accord with the fourth defendant’s description of having to wait after his passengers alighted for the second defendant's car to pass. All factors pointed towards the need to proceed at a speed that would have permitted the second defendant to stop if the plaintiff had emerged from behind the bus in the way that he did. Given the absence of other countervailing factors of any kind, such as the need to keep up with busy traffic on a six lane arterial road in Sydney, or the need to watch for another, or other, possible sources of danger, such as oncoming traffic that may have veered onto his side of the road, or pedestrians coming from the west, the second defendant was actually confronted with only one imperative. That was the need to anticipate the distinct possibility that an infant pedestrian might attempt to cross the road as the plaintiff did. This was a clearly perceivable – indeed, perceived – risk that the second defendant did not take proper or adequate precautions to avoid. In my view, the second defendant drove at a speed that was excessive in the circumstances.

I consider that this is a case in which, as Mahoney P said in Stocks v Baldwin (supra), if the second defendant " had been travelling more slowly, it is likely that he would have stopped in time " and " I am [also] not satisfied that, had the [second] defendant been driving at a speed appropriate to the circumstances, he could not have avoided striking [the plaintiff]". Like Stein JA in Rowes Bus Service v Cowan (supra), I have also taken " particular account of the factors relevant to the balancing process mentioned by Mahoney P in Stocks v Baldwin ".

An issue arose in the proceedings concerning whether or not the fourth defendant had activated the amber flashing lights at the rear of his bus. He said that he did. No witness said that the lights were not activated although several witnesses were unable to recall whether they were on or off. For example, part of the first defendant's evidence was as follows: "Q. You didn't see any amber lights flashing on the top of the bus? A. I don't recall no, seeing it."

The fourth defendant gave evidence of how the lights were activated: "Q. Can you tell us about the operation of the flashing lights? Firstly, how was the flashing light system activated? A. As soon as the doors were opened, as soon as you hit the switch for the doors to open the lights would automatically come on. Q. Before you move past that, was there something you had to do in order to activate the system as a whole? A. Yes, had you to turn them on manually. There is a switch on the dash that you would turn on, a little toggle switch on and off. So you would turn that on. Q. When the lights flashed, which lights flashed? A. Okay, you had the headlights flashing on the front, the two up the top and the two up the back."

A little later he gave this evidence: "Q. If I can raise one technical matter, you told us in the course of that story that when you closed the doors the flashing lights were still on? A. Yes. Q.Was there some means by which you could tell the flashing lights were still on or not? A. You could actually hear a ticking. There was like a transformer - not a transformer, but there was something, a little box there, you could actually hear it tick, tick, tick, actually like an indicator. Q. Was it the same sound as an indicator or a different sound? A. It's a little bit louder than an indicator. Q. When you closed the door on this particular day to look in your mirror, could you still hear that louder ticking sound or not? A. Yes, I possibly could have. Q. As a technical matter, were you aware of what happened with these flashing lights once you closed the door? A. Yes. Q. What happened? A. They would stay on for probably 22, 23 seconds, I guess. Q. Did you touch the toggle switch which turned on and off the flashing light system at any time between leaving the depot and the subsequent arrival of an RTA inspector? A. No."

Finally, in cross examination, he gave this evidence: "Q. It couldn't be the case, could it, that you forgot to turn the safety lights on on the day of this accident? A. Everything was turned on."

In my opinion, the evidence establishes that the lights were activated at the time of the accident and at all times after the bus stopped as the second defendant’s vehicle approached it from behind. However, even if the lights had not been on, I would still find that the second defendant was negligent for driving at an excessive speed. This is because there were several other indicators that the bus was a school bus stopped at a bus stop. The second defendant's own evidence establishes that he had all of this information, and more, even without the benefit of the flashing lights.

The signage at the rear of the bus is not in dispute. It consisted of a sign with the number "40" enclosed in a red circle with the adjacent words "when lights flash". This is shown in photographs of the bus tendered in evidence. It is otherwise agreed.

I am unable to be satisfied one way or the other whether or not the fourth defendant sounded his horn. He said he did but no other witness had a recollection of hearing it. It is to my mind unimportant. The horn was sounded according to the fourth defendant as the collision occurred. It could not, and in my opinion would not, have made any difference at all to the outcome.

The fourth defendant said that his right side indicator had been activated. No allegation of negligence is made about this. His description of the ritual he followed when preparing to leave the kerb included the activation of his indicator. If it were relevant I would find that he did so on this occasion as he prepared to pull out when the second defendant had passed. The case against the third and fourth defendants

The plaintiff alleged that by reason of a history of bullying that had occurred on the bus over a period of approximately two years, there arose a duty on the part of the third and fourth defendants in effect to take special care to observe and to guard against the likelihood that the plaintiff may do something irrational or unexpected as a result. The breach of their duty was therefore alleged to consist in failures to heed warnings that the plaintiff had been subjected to bullying on the bus and to take steps to prevent or control such behaviour. That this type of allegation was sufficient to articulate a cause of action in the circumstances of this case is open to debate.

However, perhaps in recognition of difficulties with these formulations, the plaintiff’s further amended statement of claim particularised the alleged breaches by these defendants as a failure to observe that the plaintiff was in a distressed and agitated state prior to, and at, the time that he alighted from the bus and that in these circumstances that they failed to take steps to ensure that the plaintiff was in a fit state to cross the road safely. It was also alleged that the fourth defendant failed to check whether or not there was traffic coming from behind and that if he had done so he would not, or should not, have opened the doors of the bus until the second defendant's car had passed. The plaintiff also alleged that the fourth defendant accordingly failed to warn him that there was in fact traffic coming from behind and to take care before allowing him to alight.

In these circumstances, a consideration of the liability of the third and fourth defendants gives rise to a series of questions. For example, had the plaintiff been bullied on the bus in the past? If so, did the third and fourth defendants know of this or should they have known of this? If they knew or ought to have known, what if anything should they have done about it? Had the plaintiff been bullied on the day of the accident? Whether or not the plaintiff had been bullied on the day of the accident, was he in a distressed and agitated state prior to alighting from the bus? If the plaintiff was in a distressed and agitated state prior to alighting from the bus, should this have been noticed by the fourth defendant? If it should have been noticed by the fourth defendant, what, if anything, could and should he have done that he failed to do?

There seems to be little doubt that the plaintiff had been involved in a series of incidents on the bus in the past, that he described as bullying, and that the third and fourth defendants knew of this. The plaintiff gave the following evidence: "Q. Can you tell the court what problems you had on the school bus? A. I was often bashed by other kids by their school bags. I was punched. One particular day I was sitting up the back with my friends, Josh, Nathan and Benjamin, Caleb and Nicky, and this was on the way home from school and we had stopped at St Joseph's High School and I would have been 10 years old at the time, around 10 years old, and this kid who was like 6 foot tall, much taller than I was, said he wanted that seat and I said, "No, I am sitting here with my friends", and he continued to say that he wanted that seat and he picked me up off the seat and threw me in the aisle. Physically he picked me up and threw me in the aisle. Q. Just focusing on that event-- A. I went home cut, bleeding. Q. You were sitting with friends. Were they friends from school? A. Yes. Q. Where were you sitting, the front of the bus, the back of the bus? A. Back."

This evidence continued a little later: "Q. Just focus on the incident where you were 10 years of age, approximately 10 years of age at the time of that incident when you were thrown off your seat and you were thrown off your seat by a child from St Joseph's High School, was it? A. Yes. Q. He was older than you, was he? A. Yes. He was much taller. Q. What happened as a result of that event? A. He threw me in the aisle and he sat in the seat. Q. Did you hurt yourself? A. Yes. I was bleeding and cut. Q. Where were you bleeding and where were you cut? A. All over my elbows and my knees, and I went home, my glasses were smashed. Q. Were there any other incidents like that? A. Yes. Q. Can you recall them? A. Yes. Many times I would have my glasses smashed by other kids. I was punched, I was hit with school bags. Q. As a result of these problems do you recall any action being taken? A. No. Q. Were you asked to sit at the front of the bus? A. Yes. Q. Did that mean that you were separated from your friends? A. Yes. Q. When I say friends, I mean-- A. From class. Q. Class friends? A. Yes. Q. As a result of sitting down the front of the bus did that alleviate the situation? A. Meaning make it worse? Q. No, alleviate. You have a problem with the word alleviate, do you? HIS HONOUR Q. Did it make it better? A. No. It made the bullying worse. McGILLICUDDY Q. It made the bullying worse? A. Yes. Q. Why did it make it worse, to your observation? A. Because I wasn't with my friends."

As a response to whatever happened to the plaintiff, he was required by the third and fourth defendants to sit in a seat on the bus directly behind the fourth defendant. He was sitting in such a position on the day of the accident. However, according to this evidence from the plaintiff, this did not stop what he described as the bullying and in fact made it worse. He gave more evidence about this: "Q. And when you were brought to the front of the bus behind the driver any commotion in the bus quietened down, didn't it? A. It made it worse because I wasn't with my classmates, with my friends. Q. When you sat directly behind the driver no-one could physically attack you, could they? A. Yes, they could. Q. You were only a foot from the driver? A. I was behind the driver in a seat. Q. Do you say that Mr Lutz sat in his driver's seat while you were being assaulted behind him? Is that what you say? A. Yes. Q. On how many occasions do you say that happened? A. I don't know. Q. Did it happen once or more than once? A. More than once."

As discussed above, in response to these problems, the plaintiff had been required to sit at the front of the bus behind the driver. Although the plaintiff referred to this fact in the passages already quoted, he gave the following evidence about it when cross examined by Mr Rewell: "Q. You sat at the front because you were told to sit at the front, weren't you? A. Yes, to minimise conflict."

The plaintiff described in some detail what he recalled took place on the bus on the day of his accident: "Q. Do you have a recollection of the afternoon trip home on the day of your accident? A. Yes. Q. Where does your recollection commence in terms of being on the bus? A. Before my stop. Q. Let's put it in context. Were you sitting at the front of the bus or the back of the bus? A. Front, behind the driver. Q. Where were your friends sitting? A. Back. Q. What do you recall happening before you got off the bus? A. Okay. There was a kid that was actually in the seat next to me in the same seat that I was sitting on behind the driver. He wanted the seat to himself. Q. Were you sitting, near the window or the aisle? A. He was sitting on the window side. Q. He was on the window side? A. Yes. Q. What school did he go to, do you recall? A. Probably St Joseph's. Q. Do you have a recollection of that or you believe it was St Joseph's? A. It would have been St Joseph's. Q. Go on from there. There was a boy sitting next to you? A. Yes. He wanted the seat to himself and I said, "No, I have to sit here. Just wait until I get off and you can have the seat to yourself." Q. Did anything else happen? A. There was a kid that was sitting on the left-hand side across from me and he was swinging his school bag at me. Q. In what way or how was he swinging his school bag at you? A. With his hand, his arm. Q. Was he making contact with you? A. Yes. Q. What part of your body was being hit by this school bag? A. Upper part, my head. Q. Did anything else happen? A. Yes. I had been punched. Q. Who by? A. By this kid. Q. Which one, the one swinging the school bag? A. Yes. Q. Did you do anything in response to that? A. Before, when it was my stop before I got off, yes. I retaliated. Q. Let's go back. Before getting off the bus did you do anything? Did you speak to anybody? A. Yes. I spoke to the driver. Q. Do you know who the driver was? A. Yes, Roland. Q. That's Roland Lutz, was it? A. Yes. Q. Was he the usual evening, afternoon driver? A. Yes. Q. What did you say to Roland? A. I asked him for help. I was crying, I was very upset. He said, "Cosmo, sit down." Q. When you asked him for help do you recall what you said to him? A. That's what I said to him. Q. You said, what, you wanted some help? A. Yes. Q. Did you tell him what sort of help you wanted or what the problem was? A. I was crying and I said that I was being bullied and bashed with the school bag. Q. His response? A. He said, "Cosmo, sit down." Q. At what point did you speak to Roland? Did you say it was a stop before your stop? A. It was before my stop, yes. Q. Can you recall approximately how soon before the stop you had this conversation? A. Much before. Q. Sorry, much before, what do you mean by that? Was it five minutes before, ten minutes, can you recall? A. It would have been, say, five minutes. Q. When you sat back down after asking Roly for some assistance, what happened then? A. The bullying commenced. Q. You mean it commenced or continued? A. Continued. Q. In what way? A. I was still being hit by the school bag. Q. So it was by this one particular child? A. Yes, who was sitting on the left across from me. Q. Was he older than you or younger than you? A. I have no idea. Q. Do you remember what he looks like? A. He had short blonde hair. Q. Was he bigger than you? A. I don't think so. Q. Did you do anything in response? This is after you had spoken to Roland. A. Yes. After I had spoken to Roly, when the bus had stopped, before I got off I went to retaliate. I swung my school bag and I missed and I was crying, I was very upset, and I just wanted to get home. Q. Just in case there is any confusion, you said just as the bus stopped. Was that at your bus stop? A. Yes, it was my bus stop. Q. As you got up to get off you swung the school bag? A. Yes. Q. How did you feel at that point? A. I was very upset. I just wanted to get home. That's all I could think about. Q. Do you have any recollection after that? A. The next thing I know I woke up in hospital. Q. So is it fair to say the last thing you recall is standing up immediately behind the driver? A. Yes."

The plaintiff agreed that his usual daily routine up until that time had always been as follows: "Q. In all events your daily routine was when the bus approached your stop to wait until the bus had stopped, is that correct? A. Yes. Q. Then get up from your seat once the bus had stopped? A. Yes. Q. Wait for the doors to open? A. Yes. Q. Walk from the bus? A. Yes. Q. And then walk on to the footpath and nature strip that was next to the bus stop? A. Yes. Q. You waited there, didn't you, for the bus to drive off every afternoon? A. Yes. Q. And then once the bus had driven off you would check that the roadway was clear? A. Yes. Q. And then walk across the road towards your home? A. Yes. Q. And other than the day of the accident that was your invariable conduct, wasn't it? A. Yes."

It was suggested to the plaintiff that the fourth defendant told him certain things every day when he left the bus and that he did so on the day of the accident. It was also put to him that he knew the following things about how to cross a road: "Q. He said "Wait till the bus leaves", didn't he? A. No, he didn't. Q. And he said, "Watch the road", didn't he? A. No. Q. But in any event you knew to do both of those things, didn't you? A. I've always known that. Q. And you knew both were important, didn't you? A. Pardon? Q. You knew it was important to wait till the bus left? A. Of course. Q. And you knew it was important to watch the road? A. Of course. Q. And to walk across the road when it was clear? A. Yes."

The fourth defendant gave evidence of his recollection of what occurred. He said that he brought the plaintiff down to the front of the bus to try to alleviate problems with the other children on the bus. This occurred about twelve months or so before the accident. As a result there were mo more problems. Specifically referring to the day in question he gave the following evidence: "Q. Do you recall anything about Cosmo's behaviour on that particular day, the day of his accident? A. When he got on at Lakeside he was a little bit quieter, he was a bit quieter than normal or usual. Q. Did you say anything to him or he to you? A. I always addressed the kids by name or whatever. I'd just say "Hey guys, how you doing?" And they would say "Hey Roly, how are you doing?" And I remember Cosmo just hopping and sitting in his seat, but not saying much at all. And I said "Hey Cosmo, how was your day?" But he didn't say anything at all. Just "mm" and sat there. Q. Did you notice anything unusual about his appearance or not? A. No. Q. How was the conduct in general on the bus on the day of Cosmo's accident prior to Cosmo getting off, do you recall? A. It was just a normal day, kids talking. There was no, no dramas at all. It was a good ride, as I put it. Q. Did you observe any disputes or disturbances? A. No.

The fourth defendant was cross examined by Mr Campbell about these matters as appears below: "Q. Mr Lutz, can I ask you this question. You were obviously bemused after this accident by the fact that, as you would have us understand, for some completely unknown reason, completely contrary to any practice that had ever been adopted by Mr Kain over the preceding 18 months or so that you had been driving him home, he just inexplicably darted across in front of your bus? A. That's correct. Q. It must have come as a complete shock to you when that happened; is that not right? A. Yes. Q. Because as you tell us on every other occasion, notwithstanding that he had episodes of unhappiness and discontent on the bus, he methodically and carefully alighted, walked along the nature strip and remained on that side of the road until you had left the area. Is that not correct? A. Yes. Q. But for some reason that you can't put your finger on, on this particular day he just, to use your words, bolted across in front of you; is that right? A. That's right, yes. Q. And you say that he did that in circumstances where a matter of seconds beforehand you had said to him: Now, look - I am paraphrasing - just wait there on the kerb and be careful crossing the road. Is that not right? A. That's right. Q. And despite having obeyed your instruction on every other occasion, for some reason you can't point to he chose to disobey it on this occasion; is that right? A. Yes. Q. Yet I think your words were he was quiet when he got on the bus? A. Yes."

Although the fourth defendant agreed that the plaintiff was quieter than usual when he got on the bus, he denied that any incident had happened. He also denied that the plaintiff was upset when he left the bus. He gave this further evidence during cross examination: "Q. The position is this, is it not; you knew that Mr Kain was upset on the day of this accident? A. No, he wasn't upset. Q. That he was visibly upset as he left the bus? A. No. Q. That there had been an incident or incidents of some kind during the course of the journey on that day. You knew that, didn't you? A. No."

The fourth defendant reaffirmed his earlier evidence that it was his invariable practice to give warnings to every child or group of children as they left the bus. Former pupils who had travelled on his bus gave evidence that they had no recollection of hearing him give any warnings of the type he said he gave, either as a matter of regular practice or at all. It is convenient at this point to record that I am not persuaded that the fourth defendant invariably gave the warnings that he said he gave. No former pupils who travelled on his bus recalled that he did so. The fourth defendant's insistence that he did so is difficult to accept given the fact that such unfailingly regimented behaviour is inconsistent with human experience. I am not able definitely to find that the fourth defendant did not warn the plaintiff as he waited to step off the bus but I am also unable to find that he did. The expression of a preference on the basis of the evidence would be capricious. However, I am not satisfied that a failure to give warnings would attract a liability on the part of the third or fourth defendants in any event. The third defendant’s "School Travel Policy" that required bus drivers " constantly " to remind students leaving the bus to remain on the footpath until the bus had departed the stop was anyway different to the warnings that the fourth defendant said he gave and on one view did not in terms anticipate the giving of a warning on every occasion. Nor is there any demonstrated causal connection between the plaintiff's conduct and the failure to give a warning, if that is what occurred, given the plaintiff's evidence that he knew in any event what to do.

I have had regard to the comments of Muir J in Jarvis & Surfside Bus Lines Pty Ltd v Scrase [1998] QCA 441 at par [30] to the following effect: "[30] . . .It is unlikely that the driver of a school bus would be obliged, as a matter of course, to issue warnings to be careful to children leaving the bus. The driver would surely be entitled to have regard to the high degree of probability of tuition in road safety at school and at home as well as to prior warnings which he or she may have given to or in the presence of a student passenger".

It was suggested to the fourth defendant that after the plaintiff left the bus he paid no more attention to what the plaintiff was doing. He gave the following answers: "A. My attention now with the doors closing, my responsibilities is done. I have delivered the child safely to the bus stop, I have told him to wait, to watch the road. He has got off the bus. He has proceeded to a safe spot, what I consider. I can now shut the doors and concentrate on the traffic coming so I can continue on my run and that is what happens each and every day. Q. Is it the case that once Cosmo was on the grass you were no longer focussing your attention on him but rather what you were about to do yourself? A. He was at a safe enough distance away from the bus not to have any concern about what was happening."

Finally, the fourth defendant was asked about what steps he took in relation to the approach of the second defendant’s vehicle. He said this: "Q. Before you opened the doors to let the boys off did you look in your rear vision mirror to see what traffic was on the road behind you? A. No. Q. Is it the fact that the first time you saw the white Corolla was when you looked in your mirror and saw it some distance but getting closer to the back of the bus? A. It was at a distance where I couldn't pull out. If it was further back I would have pulled out. It was at a distance close to the bus that I couldn't pull out. Q. But that was the first time that you had seen that car? A. Yes."

The fourth defendant said that he made a value judgment at the time that he would delay his departure from the kerb because, although the second defendant’s car was behind the bus, it was not sufficiently far enough behind for him to leave the kerb safely.

The plaintiff relied upon a number of authorities in support of his case against the third and fourth defendants. The first was Jarvis (supra). That was a case in which a 10-year-old girl was killed while crossing a roadway in the course of returning to her residence a short distance away, having just alighted from a bus. When she did so the defendant was sitting in the driver’s seat of the bus, which was fitted with rear vision mirrors on either side. The driver would have had an unobstructed view of traffic approaching his bus from the rear over a distance of at least 200 metres and perhaps more. The plaintiffs alleged that the bus driver failed in his duty to the child to warn her that, after he gave her permission to alight from the bus, she should exercise caution in crossing the street because he was aware or least ought to have been aware that a motor vehicle was driving at a speed of approximately 60 km/h along the street that she was about to cross hurriedly.

The trial judge had expressed the following opinion: "The first defendant knew that it was a dangerous position for a bus stop. He had seen some "near misses" on previous occasions. If he had looked in his rear vision mirror when [the child] asked his permission to leave the bus, he would have seen the approach of the third defendant at a speed of 60 to 65 km/h and he was aware of the propensity of school children in the buses he drove to run across the road without looking properly.

In the Court of Appeal, Pincus JA said at par [8] that "there can be no dispute that there was a duty owed by the bus driver to the alighting child; the real question is the scope and content of that duty". He concluded at par [11] that: "[11] . . . the primary judge was right to hold, not merely that the injury to the child was foreseeable, but that the bus driver's duty of care extended so far as to take the simple step of observing the approach of the oncoming car and giving the child an appropriate warning".

Muir J continued at par [29] ff as follows: "[29] I do not consider that there are any policy considerations which would prevent the conclusion that the circumstances of this case gave rise to a duty of care on the part of the first appellant which necessitated the giving of a warning. To the contrary, there are matters which suggest that duty ought to be found to exist. The second appellant was carrying school children for profit on a school bus. The first appellant was the driver of the bus. Clearly both appellants assumed a degree of responsibility for the safety of their young charges. It is well recognized that a factor which tends to give rise to the existence of a duty of care is the assumption by a defendant of responsibility for the plaintiff particularly where the plaintiff 'might reasonably expect that due care will be exercised' : Kondis v State Transport Authority (1984) 154 CLR 672 at 687. [30] I readily accept that the appellants were not in the position of insurers. It is unlikely that the driver of a school bus would be obliged, as a matter of course, to issue warnings to be careful to children leaving the bus. The driver would surely be entitled to have regard to the high degree of probability of tuition in road safety at school and at home as well as to prior warnings which he or she may have given to or in the presence of a student passenger. The circumstances under consideration though were unusual. There is a likelihood that [the child] was anxious and distracted as a result of her younger sister's failure to return. . . [31] A reasonable man in the position of the first appellant would have perceived there to be a risk of serious injury or death, and the probability of its occurrence to be rather more than slight or remote. In response to the risk he would have given a warning. At the very least he would have checked for approaching vehicles. He may well have done both. To do so would have taken very little time, involved almost no inconvenience and, on the first appellant's own evidence, would have been consistent with his practice of issuing frequent warnings. There were no conflicting responsibilities which, in any way, militated against the giving of a warning to [the child]. There is no evidence that the first appellant, at relevant times, was distracted or engaged in another task or tasks. . . ."

His Honour was satisfied that the trial judge's conclusion that the bus driver had a duty to warn was correct.

The plaintiff also relied upon what was said in Rowes Bus Service Pty Ltd v Cowan (supra) at pars [25] to [28] and [34] as follows: "[25] As a general proposition it may be said that a bus company’s duty of care to a passenger may cease when the passenger is deposited safely on the footpath. But this general proposition must yield to particular factual circumstances which may demand that the duty to act reasonably towards a passenger continues to operate after a passenger has alighted from the bus. [26] For example, if a bus stopped at a place which was dangerous for a passenger to alight, such as within the roadway itself, and the passenger was then knocked over by a motor vehicle, then the duty of care would extend to that foreseeable risk. Urban Transit Authority v Ruz-Canales (1995) 22 MVR 249 is such an illustration. A bus driver, requested by a passenger, allowed him to alight by opening the door when it was dangerous to do so. To open the bus door in the circumstances was clearly a breach of the duty of care to the passenger. [27] Jarvis v Scrase (unreported, Queensland Court of Appeal, 22 December 1998) is another illustration of how a particular set of facts can lead to the existence of a duty of care extending after a passenger has disembarked from a bus. Particular emphasis was placed on the driver having control of the situation of a school bus containing children of tender years. The court was at pains to stress that each case must depend on its own facts. Pincus J said: '… this Court should not attempt to enunciate a principle which comprehensively sets out when a person such as a bus driver will, and when that person will not, be liable for injuries sustained by a child alighting from a bus. In my opinion, in the circumstances explained in detail in the reasons of Muir J, the primary judge was right to hold, not merely that the injury to the child was foreseeable, but that the bus driver's duty of care extended so far as to take the simple step of observing the approach of the oncoming car and giving the child an appropriate warning.' [28] One of the considerations in the case before the court is whether the facts establish that the dropping off of passengers, particularly school children, at this particular undesignated bus stop in Richmond Road was potentially dangerous.

The plaintiff also sought to draw in general terms upon the remarks of McHugh J in Roman Catholic Church v Hadba [2005] HCA 31; (2005) 221 CLR 161 at pars [43] and [44] as follows: " [43] Once a reasonable person foresees that a system or situation for which he or she is responsible gives rise to a risk of injury, negligence doctrine requires that person to consider the magnitude of the risk and the probability of its occurrence. It then requires the person responsible for the risk to balance those variables against any conflicting responsibilities and the expense, difficulty and inconvenience of taking action to eliminate or reduce the risk. Finally, negligence doctrine requires the person who is responsible for the risk to make a value judgment as to whether the variables calling for action are outweighed by the burden of taking action. [44] In determining the probability of an occurrence, the vulnerability of the person at risk is a critical factor. A risk may have a low probability of occurring when the person is a mature adult of ordinary intelligence. It may have a high probability of occurring when the person at risk is a small child. So action on the part of the risk maker that is reasonably required in one situation may not be required in a different situation. Hence, negligence doctrine will generally impose a higher standard of care on a person who creates or is responsible for a risk of injury to an employee, a prisoner or a school child[8] than it will impose in respect of many persons falling outside those categories. The boredom and familiarity of repetitive work and the fatigue induced by long hours may cause the employee to lose concentration and increase the risk of injury. The restrictions on freedom imposed on the prisoner take away his or her autonomy and lessen the prisoner's capacity to guard against danger. The immaturity of a child - especially a young child - makes the child insensitive to danger to him or herself and other children."

The facts of the present case, in the light both of these and other authorities, lead me to conclude that the following answers should be given to the questions posed at par [81] above.

I find that the plaintiff had been involved in numerous altercations and disputes with other passengers on the bus over an extended period. Whether or not these were properly to be characterised as bullying or victimisation is to some extent beside the point. The incidents were sufficiently serious for the plaintiff’s mother to have brought them to the attention of the school and for the third and/or fourth defendants to have done something about them. There is some suggestion that the plaintiff was a protagonist at times, if not often, and that he gave as much, if not as good, as he got. It resulted in the decision to seat the plaintiff directly behind the driver. So much reveals that the third and fourth defendants recognised that there was a problem that required a solution, which they hoped in that way to provide.

I consider that the plaintiff overstated the degree and extent of the conduct of other children on the bus that he saw as aggressive behaviour directed at him. I am not satisfied that the plaintiff was bullied in the sense that he was intimidated and picked on by older of stronger children so that he was physically injured or emotionally overpowered. I was given the distinct impression that the plaintiff was an awkward lad whose disabilities from birth rendered him vulnerable to teasing and that he was teased. No accommodation would appear ever to have been arrived at between him and those who would make fun of him and disruption on an ongoing basis aboard the bus was the chronic result. I find that the third and fourth defendants knew of this and that they took steps to alleviate it in the way described. That it was not wholly successful is evident.

I find that the plaintiff was not bullied on the day of the accident. I accept the description given by the fourth defendant of what occurred. The plaintiff would appear to have become embroiled in a minor altercation with the boy sitting next to him. Joshua White gave evidence that there was no significant altercation on the bus on this day. He said it was limited to " some verbal abuse and paying out ". Nothing of significance or consequence flowed from what took place in my opinion. Nor do I accept that the plaintiff was visibly, or in any other way, upset or distressed as a result of what occurred. The "evidence" of Ms Long, a passenger on the bus, contained in a statement given by her to an investigator when she was still young, suggesting, in answer to an egregiously leading question, that the plaintiff had been "crying" on the day of the accident, is wholly unreliable and I place no weight upon it at all. Another passenger on the bus, Ms Clement, did not observe that the plaintiff was in any way distressed by the argument he was having with the child seated next to him, who according to her alighted from the bus ten minutes before the plaintiff in any event. There is no other evidence that a significant disturbance occurred on the bus on this day apart from the evidence of the plaintiff, which I reject.

There is uncontradicted evidence that the plaintiff was quieter than normal when he boarded the bus. However, if it is suggested that that was something that should in some way have elevated the fourth defendant to a heightened level of concern for the plaintiff above what was usual, I reject it as an unreasonable submission. The suggestion that the fourth defendant should have made some relevant connection between the plaintiff’s mood on the day of the accident and the likelihood that he would discard his previous unfaltering pattern of behaviour on every previous afternoon when he alighted from the bus this day is tenuous at best and unsupportable at worst.

In particular, it appears to contradict the principal basis upon which the plaintiff seeks to support his case against the third and fourth defendants. The evidence clearly supports the fact that up until the day of the plaintiff’s accident he had for over one year invariably adopted a consistent and regular course of conduct when he alighted from the bus. The plaintiff said so and the fourth defendant agreed. This course of conduct or routine was, on the plaintiff's case, one that he had always adopted on all occasions and in all circumstances, including presumably all of the occasions on which, in his words, he had been bullied. There was therefore a reliable and repeated pattern of safe behaviour by the plaintiff, even on occasions when he had been treated in a way that had led to him being seated at the front of the bus.

That a child of almost eleven years of age might cross the road in an unsafe manner is uncotroversially foreseeable. It was no doubt a factor that informed the fourth defendant's claimed exhortations to his passengers when they alighted. However, the touchstone of liability is reasonableness. It does not appear to me to be reasonably foreseeable that the plaintiff would have acted in the way that he did on the day in question having regard to the reliably safe way in which he had performed without exception on all previous occasions. As I have emphasised, these occasions must on the plaintiff’s own case have included those occasions when he had been bullied or victimised or howsoever it may be appropriate to describe it.

Nor were there any other factors that should have led the fourth defendant to act other than in the way that he did. The weather was fine and visibility was good. The plaintiff alighted at a designated bus stop with the safety of which there has been no issue. The traffic was no different to what was normal or usual for a school-day afternoon. The defendant did not observe the plaintiff to be upset and I accept his evidence to that effect. The plaintiff was not in any particular hurry and did not exhibit any signs that he was. The plaintiff was not under any time constraints or burdened with the need to return home hurriedly, as was the young girl in Jarvis (supra). The approach of the second defendant's vehicle was not anything to which the fourth defendant ought reasonably in these circumstances to have had any more particular regard than that which he paid it. Indeed, the second defendant's vehicle would have passed safely and without incident long before the plaintiff attempted to cross the road if the plaintiff had adopted his usual course of conduct in doing so. The fact that there was evidence on a previous occasion some months before this incident of a different child crossing in front of the fourth defendant's bus is no more and no less than an example of the erratic and unpredictable behaviour of young children of which the cases speak, but of which the fourth defendant was, or should have been, aware in any event. The situation may have been different had the incident involved the plaintiff, because it would have raised in the mind of the reasonable driver of a school bus that he had the care and custody of a young passenger upon whose prior conduct when crossing the road it would not necessarily be safe of prudent to rely. This was not such a case.

I find that the third and fourth defendants did not do anything that they ought not to have done, and that they did not fail to do anything that they ought to have done, in discharging the plaintiff from their bus on the day of his accident. This would include any alleged failure by the fourth defendant to give his usual warning to the plaintiff, and a clearly causally irrelevant alleged failure by the fourth defendant to sound his horn. Any view of the liability of these defendants favourable to the plaintiff is a view taken "through the prism of hindsight". As will be apparent, even if the plaintiff were, contrary to my finding, visibly upset in a way that the fourth defendant should have noticed, I would reach the same conclusion. The plaintiff was not so concerned that he was not able to retaliate and the incident would appear to have been no more serious, and in my view considerably less serious, than the general range of incidents that the plaintiff sought to establish. The plaintiff had clearly demonstrated himself to be responsible in similar situations in the past and it would be entirely unreasonable to expect the fourth defendant to have acted in any different way on this occasion. The evidence does not in my opinion support the allegation that the plaintiff was not "in a fit state to cross the road safely". I find that he was not visibly upset or agitated as he left the bus.

The plaintiff also alleged that there was a failure by the third and fourth defendants to have a sign on the rear of the bus saying "School Bus", contrary to Reg 93 of the Road Transport (Safety and Traffic Management) Act 1999 . The bus did not have such a sign. However, even if there were a breach of the regulation, there was no causal connection between the breach and the accident. The second defendant was at all times aware that the bus was a school bus and the plaintiff has not demonstrated that the presence of words describing it as such would meaningfully have added to the information available to the second defendant or that he would have acted differently if he had had it.

However, reg 93(7) provides that the regulation does not in any event apply to a vehicle operated in accordance with reg 94. Reg 94 is headed " Warning signs and lights for school buses ". It requires a school bus to have a "warning system" attached to the bus. "Warning system" is defined as follows: " warning system " means a system of signs and flashing lights that is designed to warn motorists of the presence of children on a bus and that complies with the requirements of the technical specification approved by the Authority from time to time for the purposes of this clause.

The plaintiff also alleged that there was a failure by the third and fourth defendants to activate the flashing warning lights on the bus at the time when the plaintiff was alighting. I have already found that the lights were activated so that this allegation is not made out. Contributory negligence

The first and second defendants submitted that the "overwhelming responsibility" for the plaintiff’s injuries should rest with him. He ran across the road without looking, in front of a stationary bus, contrary to what he had been taught and understood, into the side of the second defendant's car.

In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 the High Court expressed the following opinions: - "[8] A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v. Macgregor (Owners) (1943) AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed. . . [9] . . . [10] The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

These defendants submitted that responsibility must be apportioned between the parties in accordance with their culpability ( Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and the causative potency of their negligent conduct: Barisic v Devenport [1978] 2 NSWLR 111 at 140-141.

In Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552, McHugh J stated at par [16]: "[16] At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed".

His mother had taught the plaintiff "very good traffic sense". She had specifically told him not to cross in front of a school bus, to look for traffic whenever crossing the road and not to run across the road in any circumstances. The plaintiff admitted that he was specifically aware on the day of his accident that he should wait for the bus to leave before stepping onto the road, that under no circumstances was he to run across the road and that he was to look both ways before crossing. Part of what the plaintiff was taught at school, along with other students, was to wait until the bus had gone, to look before he stepped off the kerb and not to run across roads. That was a regular theme in what the children were taught as far as road safety awareness programmes were concerned.

The plaintiff ran into the second defendant’s vehicle. Mr Cottrell confirmed that the Plaintiff was " looking down sort of and he was jogging " and " had his head down to the roadway ". The first and second defendants submitted that in these circumstances the plaintiff disregarded three fundamental road safety considerations that he had been repeatedly taught and was expressly aware of on the day, namely, not to cross in front of a bus, to look before he crossed and never to run across the road. These defendants made no submissions directed to considerations arising from the plaintiff’s age at the time of the accident. On the contrary, the plaintiff emphasised this factor as being critical in the determination or assessment of the plaintiff's contributory negligence, if any.

Section 138 of the Motor Accidents Compensation Act 1999 provides relevantly as follows: "(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. (2) . . . (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage. (5) . . . (6) This section does not exclude any other ground on which a finding of contributory negligence may be made. (7) . . ."

On 22 January 2001 the Law Reform (Miscellaneous Provisions) Amendment Act 2000 ("the Amending Apportionment Act") commenced operation and replaced the relevant provision of the Law Reform (Miscellaneous Provisions) Act 1965 ("the Apportionment Act"), that had previously governed the apportionment of damages in the event of a finding of contributory negligence. Section 9 now provides as follows: "(1) If a person (the "claimant") suffers damage as the result partly of the claimant’s failure to take reasonable care ("contributory negligence") and partly of the wrong of any other person: (a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. (2) Subsection (1) does not operate to defeat any defence arising under a contract. (3) If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable."

The words "such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage" are different to those in s 138(3), namely, " just and equitable in the circumstances of the case " .

In Nicholson v Nicholson (1994) 35 NSWLR 308 at 333F-334B the Court of Appeal considered the predecessor to s 138(3) in the following passage: "The formula chosen for the purposes of s 74(3) ('such percentage as the court thinks just and equitable in the circumstances of the case') differs from that ordinarily applicable in cases of contributory negligence under the general law: ('having regard to the claimant's share in the responsibility for the damage'). It may be that the former was used in place of the latter to enable the Court, in examples of the kinds to which I have referred, to recognise that, there being no contribution by the deemed contributory negligence, it would be unjust and inequitable to reduce the damages otherwise recoverable".

In Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315, Giles JA at [54] – [56] said the following: "[54] By s 138(3) of the MAC Act, the damages are to be reduced "by such percentage as the court thinks just and equitable in the circumstances of the case". The wording differs from that in the long-standing general provision in s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 ("the LR Act"), and from that in the replacement s 9(1) of the LR Act since 2000 ( but applicable to earlier wrongs). [55] Section 10(1) provided - '10(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage ...' [56] The approach to reduction of damages in accordance with s 10(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494 - 'The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance'."

His Honour then remarked as follows at [63]: "[63] What is just and equitable must be determined in a principled way, and as Priestley JA observed (in a judgment dissenting in the result) in Bradshaw v Wallis (CA, 1 April 1996, unreported), "[t]o comply with s 74(3) requires the court to arrive at a percentage which inevitably involves as part of the process some kind of comparison between the balance to be attached (in this case) to the driver and the plaintiff”. In the comparison, the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage will call for attention. In the present case, neither the appellant nor the respondent suggested that the approach described in Podrebersek v Australian Iron & Steel Pty Ltd was inappropriate.

When the apportionment legislation was introduced into Parliament in 1965, Mr McCaw, the then Attorney-General, in his second reading speech said that the purpose of the legislation was for: "the amendment of the old common law doctrine of contributory negligence so as to give the court power to apportion damages according to the percentage of blame or responsibility for the accident out of which the action arises". Further, when the predecessor of s 138, namely s 74 of the Motor Accidents Act 1988 was introduced, nothing was said that could explain why Parliament chose to use different words to those previously (and universally) used in all apportionment legislation.

The position is further compounded when regard is had to the terms of s 5R of the Civil Liability Act 2002 . It provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time".

Section 5R had its origin in Recommendation 30 of the September 2002 Review of the Law of Negligence Final Report. At par 8.10 the report said: "8.10 In the opinion of the Panel, there is in the Australian community today a widely held expectation that, in general, people will take as much care for themselves as they expect others to take for them. This is an application of the fundamental idea that people should take responsibility for their own lives and safety, and it provides powerful support for the principle that the standard of care for negligence and contributory negligence should be the same".

There would appear to have been little judicial consideration of s 5R and none dealing with contributory negligence on the part of children involving the use of motor vehicles or respecting their conduct on or near roadways: see, for example, Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874 at 69,221, [9]-[10]; Consolidated Broken Hill v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 at 68,019-68,020 [59]-[70]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at 68,093-68.084, [82]-[88]; Doubleday & Anor v Kelly [2005] NSWCA 151.

In Waverley Council v Ferreira , Ipp JA, when concluding that a 12 year old child was not guilty of contributory negligence, noted at par [86]: "[86] These concepts, however, have to be tempered where the plaintiff is a child: see the discussion by Bryson JA in Doubleday v Kelly at [24] to [26]. I respectfully agree with Bryson JA that the characteristics of a reasonable person in the position of "that person" in s 5R(2)(a) include the characteristics of being a child (where the plaintiff is a child)."

Importantly, his Honour continued by reference to the Report at par [87]: "[87] Section 5R is in accord with Recommendation 30 of the Negligence Review and the words "reasonable person in the position of that person" are equivalent to the words "a reasonable person in the plaintiff's position" in Recommendation 30(a). In paragraph 8.12 of the Negligence Review the following was said: 'It is important to note that applying the same standard of care to contributory negligence as to negligence does not entail ignoring the identity of the plaintiff or the nature of the relationship between the plaintiff and the defendant. If, for instance, the defendant was an adult and the plaintiff was a child, applying the same standard of care to the plaintiff as to the defendant would not entail treating the plaintiff as an adult (any more than it would entail treating the defendant as a child). Again, if the defendant was a teacher and the plaintiff was a pupil … it would be perfectly consistent with applying the same standard of care to both parties to take account of the fact (for instance) that there is a relationship of authority between teacher and child … The requirement to apply the same standard of care in dealing with the issue of contributory negligence as is applied in dealing with that of negligence means only that the plaintiff should not be treated differently from the defendant merely because the plaintiff is the person who has suffered harm.' The remarks of Bryson JA are in accord with these observations.

Historically, contributory negligence was said to be evaluated by reference to an objective test " independent of the idiosyncrasies of the particular person whose conduct is in question ": see Glasgow Corporation v Muir [1943] AC 448 at 457. Childhood was however not necessarily seen to be, or to be regarded as, an idiosyncrasy.

The plaintiff submitted that given the terms of s138 (3) and s 5R, a question must arise as to the correct formulation of the test for determining contributory negligence, particularly in the circumstances prevailing in the present case. Moreover, even before those provisions were enacted, the rule was not absolute. For example, in Daly v Liverpool Corporation [1939] 2 All ER 142 at 143, Stable J said: "The plaintiff in this case is an elderly woman. She was trying to cross the road, and I think that she was doing her best. For one of that age, I do not think that it was at all a bad best, but it was not good enough. Although her inability to see the bus and to think as quickly as younger people could have done, and to take the necessary action, would not occur in younger men and women, what she actually did was the best she could. I cannot believe that the law is quite so absurd as to say that, if a pedestrian happens to be old and slow and a little stupid, and does not posses the skill of the hypothetical pedestrian, he or she can only walk about his or her native country at his or her own risk. One must take people as one finds them. There is no hypothetical standard of care. We must all do our reasonable best when we are walking about".

Additionally, speaking in the context of contributory negligence of children, Sir Frederick Jordan said in Cotton v Commissioner For Road Transport and Tramways (1942) 43 SR (NSW) 66 at 69: "But even children are expected to exercise such capacity as they possess…. contributory negligence in the sense in which it is now being considered occurs only when a person fails to take all such reasonable care as he is in fact capable of. I am not aware of any case in which a person has been held to be guilty of contributory negligence through the application of some arbitrary general standard.… The capacity to neglect is a question of fact in the individual case…having regard to his youth and general intelligence".

McHugh J criticised this approach in Joslyn v Berryman (supra) at [32]. No other member of the Court did likewise and the observations (at least to the extent that they are referrable to children) have not been overruled. Indeed, they were expressly endorsed by Menzies J in McHale v Watson (1966) 115 CLR 199 at 223-224. The approach of McHugh J was however adopted (without any consideration of the issue) by Bryson JA in Doubleday at [25].

In McHale v Watson (1966) 115 CLR 119, McTiernan ACJ said at 205: "There is ample authority for the proposition that in cases dealing with alleged contributory negligence on the part of young children they are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience".

In the same case Kitto J, whose judgment was the only one that McHugh J made reference to in Joslyn , appeared to reject subjective considerations from the inquiry: see 214-215. Menzies J appears to have gone even further stating at 223-224 that: "Where a question concerns the plaintiff's contributory negligence, the law permits a subjective test, and this is so not only in the case of children. Any person under a disability is only required to take such reasonable care for his own safety as his capabilities permit". Owen J added at 229-230 that "it is plain that in dealing with the question of contributory negligence on the part of a child, its age is a relevant fact since the care expected of it is that reasonably to be expected of a child of similar age, intelligence and experience. That has been laid down again and again".

McHale v Watson concerned the question of the liability of a child for negligence. No issue of contributory negligence arose in that case. It was simply discussed by the Court as an aid to the fixing of a standard for the establishment of tortious liability in infants.

In Mye v Peters (supra), Sugerman JA dealt expressly with the question of contributory negligence on the part of children (in circumstances remarkably similar to the present case) in the terms already referred to in these reasons at par [52] above.

Underwood J, having considered the authorities, gave detailed consideration to the issue of contributory negligence by children in road accident cases in Bullock v Miller (1987) 5 MVR 55 at 59: "The standard of care is not fixed solely by reference to the knowledge of the dangers of the risk of injury possessed by an average child of equivalent age. It takes into account the fact that young children have limited perception, foresight and ability to make a reasoned judgment. Young children lack the capacity to recall and apply previously gained knowledge so as to avoid injury. Impulsiveness, selfishness and single-mindedness are idiosyncratic behavioural characteristics of childhood. The extent to which they govern behaviour in situations involving the risk of injury, gradually diminish with maturity. The circumstances in which the duty to take care arises is relevant. If they are complex, the limitations of childhood will more readily deprive the child of the appreciation of the need to avoid the risk of injury and the ability to select and take the appropriate steps to avoid such risk. If they are simple, such limitations will less readily inhibit the ability to appreciate the risk of injury and the ability to recall and apply learned behaviour to avoid injury. In short, the standard is simply that which a reasonable jury would expect of an ordinary child of similar years and in similar circumstances".

In Humphrey v Hansen (1997) 25 MVR 402 at 406, Murray J dealt with the conduct of a 9 year old girl and said: "Because she might have been expected to take care to look that the road was clear before crossing in an ordinary situation which presented fewer distractions and less stressful and frustrating circumstances, does not mean that on the occasion in question she should be held to be contributorily negligent to any degree in the circumstances with which she was presented."

The plaintiff submitted that the " circumstances " in the present case must necessarily include his age, intelligence, and experience. " The younger the child the less the capacity until a stage is reached at which there is none ": Cotton (supra) at 69. See also Beazley JA in Gunning v Fellows (supra) at par [57] above.

As to whether it is permissible to go beyond the mere chronological age of a child and take into account his or her intelligence and experience (or any other circumstance referrable to them such as disability and the like) Campbell JA observed in Manly Council v Byrne [2004] NSWCA 123 at [113] that " there is some tension in the authorities about whether, as well as the age of a child, the intelligence and experience of the particular child can be taken into account or whether, because the test for contributory negligence is an objective one, such factors personal to the individual plaintiff should not be taken into account ". In the result his Honour was not called upon to wrestle with that tension. Further, the case involved a diving mishap and so did not call for a consideration of s 138(3).

His Honour went on at par [114] to consider as a relevant circumstance the fact that the failures of the child occurred in a very brief moment of time, whereas the defendant's conduct had occurred over a longer time and necessarily involved more than a mere momentary lapse of concentration or attention.

It was therefore submitted on behalf of the plaintiff, particularly in the absence of any authority where the contributory negligence of a child of 10 or less has been considered and had resulted in a reduction of greater than 10 per cent, independently of considerations of experience and intelligence and the broader circumstances, that it would be just and equitable in all the circumstances of this case not to make any, or at worst only a notional, reduction by way of apportionment on account of contributory negligence. Consideration

Although the second defendant was still only a learner driver, he was older than the plaintiff in the sense discussed in Mitchell (supra). He was presumably more experienced in the ways of traffic. He was certainly in charge of a fast moving object but by no means travelling above the relevant speed limit. However, even at that speed his vehicle was capable of causing grave injury and even loss of life. This is what occurred in fact. There was certainly present a " disproportion of responsibility, control and experience ", although it was not of the most marked kind. Moreover, the negligence that I have found on the part of the second defendant was limited in its nature, extent and degree. Nevertheless, the accident was avoidable by the exercise of proper care, which in the circumstances of this case the second defendant failed to demonstrate. The second defendant failed adequately to heed the perceived risk that young children might act impulsively, carelessly and irrationally, and that such behaviour could extend to their conduct when crossing the road upon which he was then driving.

The plaintiff was almost eleven years old. He had been taught road safety by his mother and his teachers and understood the rules of the road when crossing. He had apparently observed these rules at all times in the past, including occasions when he had alighted from the bus following incidents that he described as upsetting to him. He was not walking at the time of his collision with the second defendant's car but moving somewhat faster in a slow jog. He was not looking where he was going but had his head down looking at the road surface. He emerged from behind the screen created by the bus, to travel over the short distance that he could have been in the view of the second defendant, in "a (green) flash". The ability of the second defendant to avoid the collision was significantly lessened by the fact that the plaintiff was not walking at a normal pace and was not keeping a proper lookout for approaching traffic. The fact that he walked in front of the bus was itself a contributing factor to the accident. The plaintiff collided with the side of the second defendant's car and not the front, thereby further limiting or restricting the second defendant’s ability to reduce the impact of the collision upon the plaintiff.

The plaintiff was not doing his best, even having regard to his age and experience. In other words, having regard to his youth and general intelligence, the plaintiff was not performing in a way that he was capable of performing. He did not exercise that level of reasonable care that he was capable of exercising. He did not exercise that degree of care that one would expect from a child of the same age and experience.

However, if "impulsiveness, selfishness and single-mindedness are idiosyncratic behavioural characteristics of childhood", they were as such an important part of the perceivable risk that confronted the second defendant. He was driving towards the point of impact with the knowledge that he would, or may be required, to pass by a stationary school bus. This possibility blossomed slowly and predictably into a certainty some distance before his vehicle reached the rear of the bus and had occurred over a reasonably long period of time. He said that the bus was several hundred metres in front of him when he first saw it and that it took about 30 seconds to reach it. It caused him at least to slow his speed by as much as 20 km/h. He was unrestricted in his vision of the unfolding scene and under no pressure or other constraints from collateral activity. He had ample time and ample room to do something. In contrast, the negligent activity on the part of the plaintiff erupted in the space of no more than a couple of seconds. The plaintiff's contribution was literally no more than a momentary lapse in concentration, whereas the second defendant was presented with relevant cues to which he failed adequately to respond over a much longer time. This is significant when one considers the relative importance of the acts of the parties causing the damage.

In my opinion the second defendant's contribution to the accident was greater than that of the plaintiff for all of these reasons. I consider that, in a comparison of the culpability of the plaintiff and the second defendant, having regard to their respective shares in the responsibility for the damage, it is just and equitable in the circumstances of the case that the plaintiff’s damages be reduced by 15 per cent by reason of his own fault and contributory negligence. Orders

This matter proceeded before me for determination of the questions of liability and contributory negligence only. In the circumstances, therefore, I make the following orders: (1) Verdict for the plaintiff against the first and second defendants. (2) Order the first and second defendants to pay the plaintiff's costs. (3) Verdict for the third and fourth defendants. (4) Order the plaintiff to pay the third and fourth defendants' costs of defending the plaintiff’s claim against them. (5) Order that the first and second defendants indemnify the plaintiff in respect of such costs as may be incurred by the plaintiff in accordance with order (4). (6) Order that the plaintiff's damages be reduced by 15 per cent as the result of his own fault and contributory negligence.