With the Benefit of Hindsight
Matt McDonald

The New South Wales Court of Appeal has overturned a judgment against a driver who ran over a 23 month old child who was crossing a pedestrian crossing alone.  The child’s mother was pushing her newborn baby in a pram and believed that her toddler was close behind.  In fact, the child had stopped to play adjacent to the chevron sign at the entrance to the pedestrian crossing. 

The driver was approximately 30 metres away when she saw the child’s mother on the other side of the pedestrian crossing.  She took her foot off the accelerator and scanned the crossing.  When she saw no-one on the crossing, she continued.  Less than two seconds before the impact, the child appeared from behind the chevron sign and walked in front of the car. 

In the lower court it was held that the driver should have foreseen that there might have been a child in the vicinity of the pedestrian crossing because of the presence of a woman with a pram.  On that basis, it was held that she should have applied her brakes and proceeded with utmost caution. 

However, the Court of Appeal noted that “the evidence established a somewhat extraordinary combination of circumstances, i.e. a 23 month old child separated from her mother by a significant distance while crossing a busy road and whose presence is almost entirely obscured by a chevron sign.”

The Court of Appeal held that to require an emergency braking response in those circumstances is unreasonable and based on hindsight.  It considered that the driver had acted reasonably in taking her foot of the accelerator and checking the crossing before proceeding through it.  In other words, the likelihood of a small child emerging unsupervised from behind a sign into the path of her car was not reasonably foreseeable:  Latham v Fergusson.