In an action for damages in negligence, a plaintiff (an injured pedestrian) must prove that a defendant (a driver of a car) failed to take reasonable care in the circumstances by failing to do what a reasonable person would have done, or by doing something a reasonable person would not have done.

Courts are required to address these questions: what would a reasonable person have foreseen in the circumstances and, if a reasonable person would have foreseen a risk of injury, what would the reasonable person have done in response? These are questions of fact, but whether there is sufficient evidence to establish that the standard of care has been breached is one of law.

In Derrick v Cheung (2001) HCA 48 the High Court of Australia allowed the appeal of a motorist who had been found negligent by both the trial judge and the Court of Appeal of New South Wales.

The accident had occurred about 9am on a Saturday morning when a 21-month-old child darted out onto the road from between two parked cars and into the path of a motorist's oncoming car. Witness accounts established there was a steady stream of traffic and that the motorist was travelling at 40-50km per hour. The speed limit of the road was 60km per hour. The lower courts had held that the motorist had driven negligently because the presence of houses and shops in the vicinity and the fact that it was shortly before Christmas should have alerted the motorist to the likelihood of a small child being on or near the road. The trial judge said it could be inferred that if the motorist's speed had been slower by a few kilometres an hour, the motorist would have been able to avoid the collision.

The High Court of Australia unanimously held that this inference was insufficient to establish a finding of negligence and was not the proper test for negligence. The test was whether the injured pedestrian had proved that the motorist had not acted in accordance with reasonable care. The court found that the injured person had not established that the motorist had failed to exercise reasonable care in the circumstances.

However, in Goode v Thompson (2001) QSC 287 the Supreme Court of Queensland found that the circumstances were such that a motorist had been negligent in failing to foresee the risk of injury and respond accordingly when a 12-year-old boy suddenly, and without warning, walked out onto the road and was hit by the motorist's oncoming car. The motorist was travelling at 50km - 55km per hour, 5km to 10km under the speed limit.

In Goodes' case the boy had been standing on the footpath talking to some school friends with his back to the motorist's oncoming car. The court found that on seeing a group of young children so close to the road, the motorist had a duty to take appropriate precautions (slow down and/or warn of her approach) to guard against the event that one or more of the children might do what children have a well-known propensity for doing, that is, to move suddenly onto the road without looking. The court apportioned fault for the child's injury at 20% to the child and 80% to the motorist.

These cases illustrate the difficulty of determining the standard of care owed by a motorist in particular circumstances. That standard is likely to be more onerous if the injured pedestrian is a child and the accident occurs at or near a school or in a place where children are likely to congregate.