District Court:

Issues:
-Whether the driver was negligent?
- What constituted driving in the manner of a reasonable person?

Argument(s) for as provided by the counsel for the plaintiff (Negligent because of SPEED):
- Yes the driver was negligent: The defendant was negligent by driving at such a speed that, beyond her power to stop if a child
suddenly appeared in front of her car... ; she drove at an excessive speed and there wasnt enough time for her to avoid the
collision

Counsel for the defence (REASONABLEly safe- at no legal fault):
-The plaintiffs argument t is invalid and unrealistic; such a concept that an inevitably safe speed exists firstly isnt a legal
requirement: Yet the law does not require that all vehicles travel at a speed slow enough to be able to stop before hitting her...
and furthermore it is impractical in that would require the defendant to travel at a crawl because she was already well below
the speed limit
-It would furthermore create traffic complications and disruptions
- it is impractical and unnecessary for her to have travelled slower

Judgment (after some hesitation): The defendant was negligent.

-Essentially, that the collision could have been averted if she had travelled at a reasonable speed; agreeing with plaintiff; he
clarifies a portion of the car which struck the plaintiff was the near side headlight and before the moment of impact, the car
was skidding to the right, hence his inference that if the defendants speed had been slower by a few kilometres per hour, she
would have been able to veer away past the plaintiff or indeed stop in time to avoid the collision. He conceded that whilst she
was10-15km below the speed limit, the speed she was driving at was already high enough to give her little time to stop.
However he never mentions, how much slower exactly the speed would have to be though he dismisses that it would be at a
crawl.
Judge Chesterman ADCJ referred to Mahoney Ps statement in Stocks v Baldwin in consideration of what constituted driving in
the manner of a reasonable person. He quotes it essentially involving the driver considering the extent of the damage inflicted
by themselves on a pedestrian, the possibility of a pedestrian emerging in their path, the precautions they must take and their
actual opportunities to respond in such an event. He concluded that she had failed to anticipate the high possibility that a small
child such as the plaintiff may be on the road, considering the presence of houses and shops in the area, in conjunction with the
date which was a busy Christmas weekend and early time of 9 am showed that this accident was in this respect possible. This i s
even more clear in the her emphasis in her evidence on the need to look straight ahead and her failure to realise that her view
of the left was obscured which suggested that she did not attempt to assess the risk, and thus was consequently not able to
implement the relevant precautionary safety measures, such as slowing down. It also undermines the validity of her defence
that she was travelling at a safe speed; it dually establishes her negligence whilst showing that she was not a reasonably careful
motorist.
-Despite the irrational behaviour of the plaintiff, he asserted that in this case, if she was a reasonably careful driver, she would
have been able to anticipate the collision. This inference is drawn from the joint judgment of the court of appeal in Steward v
Carnell.

Problems and difficulties of the case:
- The question of subjectivity, did the judge feel morally obliged to decide in favour of the plaintiff?
- The inferential legal reasoning that is a value judgment as stated by the judges of the court of appeal, in that it didnt
have material facts or hard evidence but rather heavily relied on interpretation which is inevitably subjective. This is
clear when the judge had acknowledged hed come to the decision after some hesitancy, There are too many blatant
assumptions already at this level, firstly the idealistic notion that driving slower will have inevitably prevented a
collision for instance had she broke in time. Furthermore, it was difficult because the case was not black and white, it
required an assessment on what the driver should have done in the situation, anticipate and act upon the possibility of
such an occurrence, i.e. as suggested, drive slower but at the constant disruption to their fellow motorists and traffic
flow or take the risk and as we saw in this case and consequently risk a collision.
- The hazy assumption of the plaintiff as his main argument which was accepted by the judge, who never fully clarifies
exactly what the speed, only generally stating that it isnt a crawling one as the defendant suggested but that it
definitely, inevitably would have prevented collision. So


NSW Court of Appeal:
- Stein and Fitzgerald

Issues:
-Significance of speed:

-Reasonable standard of care:

-The notion of a value judgment:

-The validity of the decisions of Mahoney P, Sheller JA and Simos AJA in Stocks v Baldwin to be cited in this appeal

Judgment: Appeal dismissed

-Significance of speed: Similar line of argument to previous judge, that speed is the main controlling factor in preventing a
collision, because swerving was of little if any use, the lane width is quite small, there was a line of stationary cars on his right
and the kerb on his left, so the only thing he could have done was braking in time and the slower the speed, the higher the
chance of braking in time
-Reasonable standard of care: Although the speed was reasonable considering the traffic conditions of the time but at a breach
of duty to other road users and thus driving at an even slower rate whilst inevitably disrupting traffic is worth it especially in the
case of a major accident which is what actually happened

Difficulties at the level:

-The two judges seem to be in agreement with the first judge and also acknowledges implicitly perhaps, the inevitable
subjectivity, in their concluding statement quoting Mahoney, the determination of whether there was a breach of the duty of
care is not determined by a syllogistic process from facts to conclusion, but rather it involves making value judgments

Davies:

Judgment:
-The defendant was driving as a reasonable standard of care, because there was no foreseeable injury. As opposed to what
Chesterman claimed, the reference to the date, day of the week, and time of the day add little or nothing to the known facts,
the street was a busy road and not a quiet suburban street where children may be playing especially an unattended child of 21
months.
-The decisions cited is irrelevant to this case because the facts were different and again there was no perceivable risk which the
appellant should have taken into account but did not, for the appellant to have dawdled along Victoria Avenue where no
particular danger as apparent is inappropriate for it could have caused disruption
-In conclusion, the appellant was driving at a reasonable speed and in a responsible manner, the respondent a toddler shouldnt
have been on the roadway, it was not observable and foreseeable that she, unattended would attempt to cross the road.
-The appeal is allowed

High Court of Australia:

Issues and judgment:

- Insubstantial reasoning of judges: negligence cannot be proven because it wasnt foreseeable that the unattended
toddler would dart into the path of the appellant, it didnt occur near a school for instance and so lowering the speed
even further wasnt appropriate or necessary. So essentially, the appellant did nothing wrong and cannot be deemed
negligent in not driving slower because the collision wasnt foreseeable.
- Reasonable care: They concluded that reasonable care was exercised because the speed the appellant was driving at
was reasonable and appropriate in her surroundings
- Subjective and speculative legal reasoning, value judgment: the judges who ruled in favour of the respondent were
erred because their conclusion was reached upon from the inference that a lower speed could have inevitably averted a
collision, was mere speculation... I quote, few occurrences in human affairs, in retrospect can be said to have been, in
absolute terms, inevitable
- Validity of citing other cases: the facts were different and the observations made exclusive to that case, not legally
binding here
- Appeal allowed but the appellant must pay for the costs incurred by the respondent

The issues were essentially similar, but they are revisited and are amplified at every level, because there was an underlying
problem of subjectivity in the speculations of the judges of the lower courts, that further obscured the truth of the matter. This
subjectivity was never addressed and tackled until the high court ruled in favour of the appellant and determined that the legal
reasoning of the judge of the district court and the judges of the court of appeal indeed mere speculations,