The NSW Court of Appeal handed down its decision in Tobin v Worland  NSWCA 188 on 31 May 2005.
The Plaintiff was 2 years and 2 months old at the time of the accident. The accident took place in a residential street at about midday on a fine Sunday. The Defendant was aware of another young child in the area as she drove along the road. The Plaintiff ran from the area where that young child was standing. He ran almost completely across the road before being struck by the Defendant’s motor vehicle.
The defendant gave evidence that her vehicle speed was about thirty to forty kilometres per hour when, about three house blocks from her home, she observed a very young girl (the Plaintiff’s sister) standing on the road about half a metre or less from the rear of the parked car. On observing the girl, the Plaintiff initially slowed down. However, she formed the impression that the girl was going to stay where she was, so the Defendant slowly accelerated.
The Defendant had observed no person other than the girl until she saw a “tuft of hair” on “my bonnet” approximately level with the left hand headlight. She had continued to accelerate slowly up to the time she became aware of the presence of the Plaintiff.
The Defendant was unable to offer any explanation for not seeing the Plaintiff earlier than she did. She conceded there was no difficulty in terms of vision and no oncoming vehicles. The Plaintiff agreed during cross-examination that she was aware of the presence of the Plaintiff’s sister and was therefore aware of the possibility of other children being in the area. She also agreed that children may act irrationally.
At first instance, Hislop J found the defendant had failed to keep a proper lookout, and had she done so, the accident could have been avoided.
The Defendant sought leave to appeal.
The Application for Leave to Appeal was heard by Tobias, McColl and Basten JJA on 23 May 2005.
The leading judgment was delivered by McColl JA. Short concurring judgments were delivered by Tobias and Basten JJA.
Her Honour was at pains to distinguish the circumstances of this case from those which operated in the landmark High Court decision in Derrick v Cheung  HCA 48; (2001) 181 ALR 301. At paras 44 and 45, Her Honour stated:
“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.
“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”.
In holding that Hislop J did not err in finding breach of duty of care, Her Honour held (at para 46) as follows:
“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.”
As such, the Court of Appeal affirmed the decision to allow the Plaintiff’s claim.
child pedestrian cases.
However, it does illustrate how easy it is for the Court to distinguish Derrick v Cheung. It is worth remembering that Ms Derrick employed a very high driving standard. She drove within the speed limit, with the flow of traffic and kept a proper lookout. She had no reason to expect a child to suddenly dart on the road.
By contrast, in this case, Ms Tobin was on notice of the possibility of children playing in the area and behaving erratically. Furthermore, given the absence of any other traffic, there was nothing preventing her from slowing down to a safer speed to ensure that she could stop in case of an emergency.
The decision in Tobin reminds us that each case must be evaluated on its own merits.