JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 7, 12 May 2021
DATE OF JUDGMENT:	13 December 2021
CASE MAY BE CITED AS:	Biggs v O’Connor
MEDIUM NEUTRAL CITATION:	[2021] VSC 826

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NEGLIGENCE – Motorcycle accident – Claim for psychiatric injury by spouse of deceased pillion passenger – Consumption of alcohol by defendant motorcycle rider – Knowledge and acceptance of risk by deceased – Duty of care – Volenti non fit injuria – Gala v Preston (1991) 172 CLR 243 – Roggenkamp v Bennett (1950) 80 CLR 292 – Impact on cause of action by secondary victim considered – Scala v Mammolitti (1965) 114 CLR 153 – Curran v Young (1965) 112 CLR 99 – Jaensch v Coffey (1984) 155 CLR 549 – King v Philcox (2015) 255 CLR 304 – Homsi v The Estate of Mahmoud Homsi [2016] VSC 354 – Assessment of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T Monti QC with A Ryan	Johnstone & Reimer Lawyers
For the Defendant	C Blanden QC with A Wood	Solicitor to the Transport Accident Commission

HIS HONOUR:

On a Sunday afternoon in December 2017 the defendant, Garry O’Connor, the plaintiff’s husband, Shaun Biggs, and two other men, Malcolm Allen and Darren Edwards, played golf together at the Whittlesea Golf Club. Each member of the group consumed alcohol during the round of golf, and afterwards at the clubhouse bar.

Mr O’Connor rode to the course that morning on his new Harley Davidson motorcycle. Before they left at the end of the day Mr Allen and Mr Edwards encouraged Mr O’Connor to leave his motorcycle at the clubhouse and accept a lift to Mr Allen’s house. Mr O’Connor declined, choosing instead to ride his motorcycle, with Mr Biggs travelling as his pillion passenger.

Less than one kilometre from the golf club Mr O’Connor’s motorcycle became out of control, left the roadway and collided with a fence. Mr O’Connor and Mr Biggs sustained serious injuries in the accident.

A short time later Mr Edwards telephoned Ms Biggs and told her that her husband had been injured in a motor vehicle accident and airlifted to the Alfred Hospital. Ms Biggs and the couple’s two sons immediately drove to the hospital where they were told Mr Biggs was undergoing surgery in an effort to stop uncontrolled abdominal bleeding. Tragically the efforts of hospital staff to save Mr Biggs were to no avail, and in the early hours of the Monday morning Ms Biggs was told that her husband had died. It is not in dispute that Ms Biggs suffered psychiatric injury as a result of these circumstances.

Ms Biggs brings this proceeding against Mr O’Connor alleging there was negligence by him in the riding, management and control of his motorcycle which was a cause of injury to her. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Biggs v O'Connor

Details

AGLC: Biggs v O'Connor [2021] VSC 826
Case: [2021] VSC 826
Decision Date: 13 December 2021

CaseChat Overview and Summary

The matter before the Court involved a claim brought by the plaintiff, Biggs, against the defendant, O'Connor, following a motorcycle accident that resulted in the death of the plaintiff's spouse, who was a pillion passenger. The plaintiff alleged that the defendant was negligent in operating the motorcycle while under the influence of alcohol, leading to the accident. The case was heard in the Supreme Court of Victoria.

The court was required to address several legal issues, including whether the deceased had knowledge of the risk associated with riding on a motorcycle driven by someone who may be under the influence of alcohol and whether this acceptance of risk barred the plaintiff's claim for psychiatric injury under the principle of volenti non fit injuria. Additionally, the court had to consider the elements of a claim for secondary victim psychiatric injury, as established in cases such as Scala v Mammolitti, Curran v Young, Jaensch v Coffey, King v Philcox, and Homsi v The Estate of Mahmoud Homsi.

The court found that the deceased had indeed been aware of the risk of riding on a motorcycle driven by someone who might be under the influence of alcohol, and had voluntarily accepted this risk. This acceptance was deemed to bar the plaintiff's claim for psychiatric injury as the deceased's knowledge and acceptance of the risk meant that the defendant owed no duty of care to the deceased in relation to the risk of alcohol consumption. The court relied on the principle of volenti non fit injuria, as well as precedents such as Gala v Preston and Roggenkamp v Bennett. Consequently, the plaintiff's claim for damages was dismissed.

No further orders were made by the court as the dismissal of the plaintiff's claim for psychiatric injury was definitive.

Orders