Catlin v Draper

[2023] NSWCA 49

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Catlin v Draper [2023] NSWCA 49

Hearing dates:

1 March 2023

Decision date:

24 March 2023

Before:

Meagher JA at [1]; Mitchelmore JA at [2]; Adamson JA at [3]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

(3)   Unless an application is made in writing for a different order within 14 days, order the appellant to pay the respondent’s costs of the appeal.

Catchwords:

APPEAL — negligence — whether reasons sufficient — nature of breach found — contested factual findings of primary judge — assessment of witnesses’ evidence — nature of review on appeal

TORTS — alleged incongruity between criminal act of respondent and imposition of duty of care on appellant — defence of illegality under the common law and s 54 of the Civil Liability Act 2002 (NSW) — whether appellant acting in self-defence — application of ss 52 and 53 of Civil Liability Act 2002 (NSW)

TORTS — consideration of “agony of the moment” defence — where onus lies — evidentiary onus

TORTS — contributory negligence — whether sufficient reasons given for discount of 25% when appellant sought 80-90%

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5D, 5R, 5S, 52, 53, 54

Motor Accidents Compensation Act 1999 (NSW), s 138

Road Transport (Driver Licensing) Regulation 2017 (NSW), regs 38, 119

Supreme Court Act 1970 (NSW), s 75A

Cases Cited:

Abdallah v Newton (1998) 28 MVR 364

Bevan v Coolahan (2019) 101 NSWLR 86; [2019] NSWCA 217

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456

Cusack v Stayt [2000] NSWCA 244

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Leishman v Thomas; Hobbs (Third-Party) (1957) 75 WN (NSW) 173

Miller v Miller (2011) 242 CLR 446; [2011] HCA 9

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Onassis v Vergottis [1968] 2 Lloyd’s Rep 403

Pettitt v Dunkley (1971) 1 NSWLR 376

Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3; (1999) 73 ALJR 306

Strbak v Newton [1989] NSWCA 202

Category:

Principal judgment

Parties:

Brooke Amanda Catlin (Appellant)
Taylor Maree Draper (Respondent)

Representation:

Counsel:
P Deakin KC / B Kelleher SC (Appellant)
L King SC / P O’Rourke (Respondent)

Solicitors:
Moray & Agnew (Appellant)
McIntosh McPhillamy & Co (Respondent)

File Number(s):

2022/209841

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

29 June 2022

Before:

Curtis ADCJ

File Number(s):

2019/286859

HEADNOTE

[This headnote is not to be read as part of the judgment]

Brooke Catlin (the appellant) appealed against the judgment of Curtis ADCJ (the primary judge) who found that the appellant was liable in negligence to Taylor Draper (the respondent) under the Civil Liability Act 2002 (NSW) (CLA) and that the respondent’s damages ought be reduced by 25% for her contributory negligence.

In April 2017, the respondent travelled to Coolangatta to visit friends. By about 1am, she was in a park near Boundary Street. At about that time, Ms Ribbons, who was also in the park, telephoned the appellant to ask for a lift home. When the appellant, a provisional driver, arrived, Ms Ribbons, her boyfriend and another male (all three of whom were under 25 years of age) got into the vehicle.

The appellant started to drive along Boundary Street at a slow speed because of the number of people in the vicinity. At that point, the respondent ran towards the car. The appellant stopped the car. The respondent threw herself at the windscreen of the car and cracked it. She then turned around and sat on the bonnet with her back against the windscreen, with her feet out in front of her.

Notwithstanding that the respondent was positioned on the bonnet, the appellant drove the car along Boundary Street. When she turned into Hill Street, the respondent was thrown off the bonnet and suffered serious injuries.

The primary judge found that the appellant was negligent and had failed to establish any of the defences raised (incongruity between the respondent’s criminal conduct and imposing a duty of care on the appellant; illegality at common law and pursuant to s 54 of the CLA and self-defence pursuant to ss 52 and 53 of the CLA). The primary judge also rejected the appellant’s submission that she had acted reasonably in the “agony of the moment”. The primary judge found a deduction for contributory negligence of 25%.

The appellant challenged several findings of fact and submitted that the primary judge ought to have found that the defences were made out. The appellant also contended that the primary judge’s reasons were inadequate in several respects.

The Court held (Adamson JA, Meagher and Mitchelmore JJA agreeing) dismissing the appeal:

1. No challenges made by the appellant to the primary judge’s factual findings were made out: [142].

2. There was no error in the primary judge’s conclusion that it was not incongruous to find that the appellant owed a duty of care as the respondent’s illegal conduct had ceased by the time the appellant drove with the respondent on her bonnet: [146]; [150].

3. The appellant bore the onus of proving that she acted reasonably in the “agony of the moment”, which was not discharged: [125]-[128].

Leishman v Thomas; Hobbs (Third Party) (1957) 75 WN (NSW) 173 at 175 (Street CJ); 177 (Owen J), applied.

1. The appellant’s conduct in driving at 1.20am with three passengers under 25 years of age in breach of the conditions of her provisional licence constituted an offence, which caused the respondent’s injuries. Accordingly, s 54(2) of the CLA applied, thereby making s 54(1) inapplicable.

2. The judicial obligation to give reasons can be fulfilled in different ways: [154]. Having regard to the structure of the judgment of the primary judge, the primary judge’s reasons were sufficient, except in respect of contributory negligence: [160]; [177]. The failure with respect to contributory negligence had no effect as no re-trial was sought and no greater reduction for contributory negligence was warranted: [190].

Judgment

1. MEAGHER JA: I agree with Adamson JA.

2. MITCHELMORE JA: I agree with Adamson JA.

3. ADAMSON JA: By amended notice of appeal filed 18 November 2022, Brooke Catlin (the appellant) appeals against the judgment of Curtis ADCJ (the primary judge) finding that she was liable in negligence to Taylor Draper (the respondent) and that damages ought be reduced by 25% for the respondent’s contributory negligence (the judgment).

4. It was accepted that leave to appeal was required as the judgment was not a final judgment. However, leave to appeal was not opposed on the ground that a final finding of liability had been made. It is appropriate that it be granted as the only outstanding issue to be determined is the quantum of damages, which will become otiose if the appeal is allowed.

5. The appellant seeks that the appeal be allowed and that judgment be entered in her favour in the Court below. She does not seek a re-trial.

6. The bare facts can be shortly stated. At about 1.20am on 14 April 2017, the appellant was driving a 2002 silver Holden Astra motor vehicle (the Astra) along Boundary Street in a westerly direction past Jack Evans Park (the park) in Tweed Heads. There were three passengers in the Astra: the appellant’s friend Rebecca Ribbons; Ms Ribbons’ boyfriend, Mason Court; and an associated male. While the Astra was near the park, the respondent ran towards it and jumped head first onto its bonnet. In the course of this, she cracked its windscreen. After she had turned herself around, she was positioned close to its centre on the passenger’s side, with her back against the windscreen and her legs out in front of her. The appellant put the Astra in motion, accelerating along Boundary Street before decelerating as she neared the dedicated right hand turn lane to Hill Street. As the appellant turned right into Hill Street, the respondent slid off the bonnet onto the bitumen of the road. As a consequence, she suffered serious injuries. It is not necessary to detail her injuries as liability (including any discount for contributory negligence) was determined separately and it is from the judgment on liability that this appeal has been brought.

7. The primary judge gave judgment for the respondent, holding that the appellant breached the duty of care that the appellant owed to her and that the respondent’s injuries were caused by the appellant’s negligence. His Honour rejected the defences under the common law and pursuant to the Civil Liability Act 2002 (NSW) raised by the appellant (referred to below). The primary judge found that the respondent’s damages ought be reduced by 25% for contributory negligence. The appellant appeals against the finding of liability and, in the alternative, appeals against the discount for contributory negligence which she contended ought to have been 80-90%.

8. In her amended defence dated 16 June 2022, the appellant denied that she owed a duty of care to the respondent and denied negligence. Relevantly, the appellant alleged, by way of complete, or partial, defence that:

1. her actions were not negligent because they were taken “in the agony of the moment brought about by the actions of the [respondent] and other persons congregated in the area” (paragraph 6);

2. the respondent was engaged in unlawful conduct which precluded the recovery of damages at common law (paragraph 7);

3. s 54 of the Act applied to preclude an award of damages to the respondent because the respondent suffered injury in the course of, or following, illegal activity which materially contributed to her injury (paragraph 8);

4. s 52(1)(a) and s 52(2)(a) of the Act applied to prevent the appellant incurring a liability to the respondent because her conduct was carried out in self-defence and was a reasonable response to the respondent’s unlawful conduct, in circumstances where the appellant believed her conduct to be necessary to defend herself (paragraph 9); and

5. even if the defence in (4) was not made out because the appellant’s conduct was not a reasonable response, the respondent was, by reason of s 53(1) of the Act, not entitled to an award of damages because the circumstances of the incident were not exceptional and it would not be harsh and unjust not to award damages (paragraph 10).

9. The appellant contends in her amended notice of appeal that the primary judge erred on the following grounds:

1.   Finding that a duty of care arose when the appellant drove the car forward after the respondent turned around [47] Red 104V-X.

2.   Finding a breach of duty on the part of the appellant in failing to stop or slow down at that point.

3.   Failing to find that the respondent threw herself onto the bonnet of the appellant's stationary car with sufficient force to shatter the windscreen.

4.   Failing to find that the respondent's illegal conduct materially contributed to a frightening situation in which the appellant could not reasonably be expected to act sensibly.

5. Failing to find that the appellant acted in self-defence either at common law or pursuant to s 52 of the Act.

5A. Failing to apply s 54(1) of the Act.

6. Failing to find that pursuant to s 5D(1)(b) of the Act the scope of any liability on the part of the appellant did not extend to the harm suffered by the respondent.

7.   In making the following findings:

a.    [regarding] the activities in the park immediately surrounding the respondent jumping on the appellant’s vehicle [12] Red 98V-X, [43] Red 104D-H;

b.    As to the state of mind of the appellant as a result of these actions [27] Red 1011-J, [33] Red 102K-M;

c.    Rejecting Ms Ribbons’ evidence she was fearful at the time the respondent arrived at the park [43] Red 104D-H, [51] Red 105K-M;

d.    Rejecting the appellant's evidence about an object being thrown at and striking the vehicle as it approached Hill Street [37] Red 103EH;

e.    As to the point at which the respondent ceased to become a threat [12] Red 98V-Y, [29] Red 101 N-R;

f.    That the appellant and Ms Ribbons exaggerated their state of fearfulness [30] Red 101R-T, [31] Red 101T-V, [51] Red 105K-M;

g.    Preferring the evidence of Mr Mulholland to that of the appellant. Ms Ribbons and Mr Myers about the surrounding circumstances [13] Red 99C-F, [15] Red 99J-K, [26] Red 101 E-H, [40] Red 103PU;

h.    As to the respondent's belief that there was a stolen handbag in the vehicle.

8.   Failing to provide adequate reasons for the decision in favour of the respondent.

9.   Failing to address any comparison of culpability for the purposes of contributory negligence.

10.   Allocating only 25% contributory negligence to the respondent in circumstances where a finding of 80%-90% was appropriate.

10. The determination of duty, breach and contributory negligence turn on findings of primary and secondary fact. Because this Court is required to review the evidence for itself (s 75A of the Supreme Court Act 1970 (NSW)), I propose to summarise the evidence before turning to the grounds of appeal.

The facts

The relevant area

11. Boundary Street, as its name implies, forms the boundary between New South Wales and Queensland. It runs in a generally west/east direction through the peninsula between the Tweed River to the south and the Pacific Ocean to the north. Boundary Street is divided by a wide green median strip. On either side of the green median strip there is angle parking for vehicles.

12. Westbound traffic along Boundary Street travels on the southern (New South Wales/Tweed River) side of the median strip. Eastbound traffic travels on the northern (Queensland/Pacific Ocean) side of median strip. The towns on either side of the border are Coolangatta (Queensland) and Tweed Heads (New South Wales). Aside from matters of legal jurisdiction, the border is a notional line between the towns.

13. At the relevant time, the park was a green area on the southern side of Boundary Street, east of Hill Street, which runs to the north of Boundary Street towards the ocean. In order to turn right into Hill Street from the westbound lane of Boundary Street, it is necessary for vehicles to enter a dedicated right-turn only lane before entering a round-about.

14. On the southern side of Boundary Street, just west of the park there is a carpark known as the Twin Towns carpark. On the north-west corner of the intersection between Boundary Street and Hill Street, there is a multi-storied residential development known as the Hotel Komune. Christopher Myers, who gave evidence for the respondent, was repairing a broken window on the eighth floor of the Hotel Komune and used his phone to film the respondent on the bonnet of the Astra and coming off its bonnet shortly afterwards.

The surrounding circumstances

15. On Thursday, 13 April 2017, the respondent travelled from her home in Bathurst to the Gold Coast for the Easter long weekend to visit a friend, Jacob Kellehan, who had moved to Coolangatta. The respondent was collected by friends from Coolangatta airport and taken to the home of one of them where the respondent recalled drinking about four Vodka Cruisers at a friend’s place after her arrival at Coolangatta. The respondent also recalled that, later in the evening, she went with friends to a local hotel across from the beach where she had two beers and played pool. I understood it to be undisputed that, by reason of the injuries she sustained, the respondent had no recollection beyond the time she was playing pool in the hotel, which was before she went to the park.

16. The statement of Mr Kellehan (who died before the hearing) was admitted as evidence in the appellant’s case. He estimated that he and the respondent drank about seven Vodka cruisers each and that she also consumed “some ecstasy caps”.

17. Tiarni Ferguson, who was called as a witness in the appellant’s case, met Mr Kellehan at the Coolangatta Hotel that evening. She arrived at about 10pm and stayed for about an hour. Ms Ferguson was not drinking that night as she had to work the following morning. Although she could not recall how much the respondent drank, she recalled that the respondent drank Bourbon and coke at the Coolangatta Hotel. The group which included the respondent then moved to the Sands Hotel.

18. Ms Ferguson saw the respondent put some gold coloured crystals (which Ms Ferguson believed to be MDMA) in her mouth. According to Ms Ferguson, this had the effect of making her “louder” and behave “erratically” in a way which was not usual for her. According to Ms Ferguson, “[the respondent’s] [c]onfidence was definitely increased”. Ms Ferguson then went with friends (not including the respondent or Mr Kellehan) to an apartment in the Hotel Komune. When they were asked to leave at about midnight, they joined the respondent and Mr Kellehan and went to the park. which was across the road, between Boundary Street and the Jack Evans Boat Harbour.

19. According to Ms Ferguson, the group of which she was part, went to the area next to the carpark which formed part of the Twin Towns development. When they arrived, there was already a group in the park. Ms Ferguson adjudged the group in the park to be younger than her group and comprised of people aged between 16 and 20 years. Ms Ferguson recalled a fight breaking out between three or four males from one group and three or four males from another group. Ms Ferguson also said that the respondent tried to get involved in the fight herself but she and others tried to stop her. She saw the respondent try to strike another female and also a male, which led the other females to ask Mr Kellehan to help calm the respondent down. During the fight, Ms Ferguson heard swearing and screaming. After the fight, which Ms Ferguson said was “all over pretty quickly”, Ms Ferguson and her group (including the respondent) went to Boundary Street.

20. From about 11pm that evening, Ms Ribbons, who was 16 years old, was in the area of the park with Mr Court and at least one other male. They were part of a mixed group of about 20 young people, most of whom were males. They were in the vicinity of the playground in the park, near Boundary Street. At some stage, three males from another group approached Ms Ribbons’ group and accused her male associates of stealing a handbag. According to Ms Ribbons, this accusation “pretty much turned into a fight almost instantly.” One of the males in Ms Ribbons’ group was punched from behind and fell down. His tooth went through his lip. According to Ms Ribbons, she thought that he was dead and held his head in her lap, which led to his blood being on her body.

21. Ms Ribbons agreed in cross-examination that she had told the police on the day of the events that she had seen the respondent standing in the park, watching the boys fight. Her evidence in chief had been that she had not seen the respondent before she saw her running towards the Astra.

22. Ms Ribbons was concerned about what was happening and, at about 1.07am telephoned the appellant from the Jack Evans Boat Harbour and asked her to come and pick her up. The appellant was in bed but was still awake and was watching a movie.

23. In the ten minute interval between Ms Ribbons phoning the appellant and her arrival, Ms Ribbons said that she saw the other group surround a car, which made her concerned that the same thing would happen when the appellant arrived. She decided to call the appellant and tell her not to come after all but just as she had made the call, she saw the appellant approaching and immediately terminated the call.

What occurred after the appellant arrived at the scene

The appellant’s evidence

24. The appellant, who was then 17 years old and on her provisional licence plates, drove the Astra (her mother’s car) in an easterly direction along Boundary Street (on the northern/Queensland side) before doing a U-turn at Coral Street before parking in an angle park on Boundary Street outside the park (on the southern/New South Wales side), some distance east of the intersection with Hill Street (the appellant estimated that she was “only about ten (10) car spots from Coral Street”). The appellant saw Ms Ribbons running towards the Astra with Mr Court and another male. Ms Ribbons got into the front passenger seat and the two males got into the back. Each of the passengers was under the age of 21 years. According to Ms Ribbons, as soon as she got in the Astra, she said to the appellant, “This is fucked. We need to go.”

24. The appellant, in a police interview which took place later that day (14 April 2017), told police:

“I’ve seen my friends run over to my car, jump in. As soon as I knew they jumped in, it was all safe.”

26. The appellant confirmed, in cross-examination that she meant that it was a “safe situation” for all four of them to be in the car, rather than outside of it. The appellant also confirmed that she had told the Triple-0 operator that she had “[g]ot [Rebecca] to jump in the car with [her], so she was safe.” She agreed in cross-examination that one of the reasons she felt that they were safe in the car was because they could lock the car.

27. According to the appellant, she was intending to reverse out of the car space and head west along Boundary Street, before turning left at the Twin Towns complex to return home along Boundary Street. She noticed that there was a group of about 20 people mingling around the entrance/exit to the Jack Evans Boat Harbour carpark. Some of the people were also in the bike lane on Boundary Street. She reversed the Astra from where it was parked and started to drive forward. She drove slowly because of the “large gathering” in the vicinity. The appellant told police in a recorded interview the following day that the group of people were between 50 and 100 metres away. A male person started to swear at the appellant and her passengers from about 200 metres away.

28. The appellant said that, at this point, she saw a young female (the respondent) “bolting towards [her]”. She accepted in cross-examination that the respondent [was] coming from [the] left … out of the parkland”. According to the appellant, the respondent was coming towards the Astra at “full speed.” When the appellant realised that the respondent was not going to stop, she hit the brake and brought the Astra to a stop in the middle of the roadway. When the respondent made contact with the Astra, the vehicle was stationary.

29. According to the appellant’s evidence in chief, the respondent came into contact with the Astra in the following way:

“Then she dived onto the car with her, what I believe to be her right shoulder or her head and that’s when she had cracked the windscreen.”

30. The appellant described her own reaction as being “[t]otal shock, total terrified fear, scared for [her] life”.

31. The appellant told police in her interview later that day:

“She jumped on forward then she turned around and her back - I don’t know how she hit my windscreen but she did and then her back, her back was on my windscreen and her left and right arm were like covering the windscreen.”

32. In her evidence in chief, the appellant said that she “noticed that the group of people … started to run towards [the Astra] and that’s when [she] decided … to start driving.” In her statement to an investigator (retained by the motor vehicle insurer) on 29 August 2017, she said:

“The other people in my vehicle were screaming in fear for me to ‘Go, go, go.’

…

It appeared to me that this girl was not going to get off. I tried to drive away from what I thought was real danger, but I was conscious that this girl was hanging on, on the front of the bonnet.”

33. When asked in examination in chief why she drove the Astra with the respondent on the bonnet, she answered:

“I was scared for my life and my safety … I made that decision ‘cause I was in shock and I was petrified which then led me to the decision to get to a safe place.”

34. The appellant said that the respondent had her back towards the windscreen and “had both her hands on [the Astra] near the mirrors … gripping on.” The appellant agreed in cross-examination that there was nothing firm for the respondent to hold onto as she drove off. She also agreed that, although the respondent was sitting against her windscreen, she was able to see to drive the car. The appellant agreed that she had “accelerated away with [the respondent] on [her] bonnet.” The appellant also agreed that when she drove off, there was no one near the Astra apart from the respondent.

35. According to the appellant, while the respondent was on the bonnet of the Astra, the appellant said that she heard a “bang” on what she believed was the roof. She could not recall seeing anyone throw anything at the car. Nor did she recall any damage to the Astra.

36. As the appellant came to Hill Street, she turned right “[b]ecause these people were chasing [the Astra] and [she] thought they were going to get [her].” In cross-examination, the appellant said that she was “definitely in fear of [her] life.”

37. According to the appellant, as a consequence of the right-hand turn into Hill Street, the respondent “had to let go and rolled off.” The appellant said that she could not recall what speed she was travelling while the respondent was on her bonnet.

38. The appellant told the investigator on 29 August 2017:

“As such, I started to drive towards the first exit which when looking on google maps is Hill Street. I was thinking if I could drive up Hill Street, it would give me enough time to stop and try and get the girl off my bonnet, but also be far enough away from the people chasing my vehicle.

As I commenced to enter a turning lane into Hill Street I had just turned slightly right to cut across the border. I noticed the girl hanging onto my bonnet seem to through [scil. throw] herself off the passenger side of my vehicle.”

Ms Ribbons’ evidence

39. Ms Ribbons said that the respondent ran towards the front of the Astra and shoulder-charged the front windscreen, making a loud, thudding noise and causing a spiral fracture.

40. Ms Ribbons said that she saw “… things coming towards the car … and heard things hit the car.” She saw a portable black speaker, which she indicated was about 10-15cm long and about 10cm high, hit the car after the Astra had started moving after collecting the three passengers and before it reached Hill Street. She heard a bang against the door on the passenger side. She heard a total of about three bangs but could not see what caused the other bangs.

41. Ms Ribbons said that “[her] fear was through the roof. [She] was very, very scared.” Ms Ribbons disagreed that the respondent was on the passenger side of the windscreen and said that she was sitting more or less in the middle of the bonnet. She denied that the appellant had driven the Astra at a speed “well past 30kph.”

42. Ms Ribbons said that she saw the respondent fall off the bonnet and “thought she prepared herself to fall off.” In cross-examination, Ms Ribbons said, “I believe that she let go and was preparing herself to fall off” and “I think if [the respondent] held on, she would’ve stayed on.”

43. Of the right turn into Hill Street, Ms Ribbons’ said in her examination in chief:

“Q. Was it ever discussed at all about going straight ahead or turning right or did that just happen?

A. We would’ve gone straight if there weren’t people there.”

44. On 2 September 2017, Ms Ribbons identified in an aerial photograph the position where she said that there was a group of people on Boundary Street, just to the west of Hill Street.

Other evidence of the events

Ms Ferguson’s evidence

45. Ms Ferguson saw the respondent running up the footpath of Boundary Street. She also recalled seeing the respondent running towards a car (the Astra). Although at the hearing she could not recall how the respondent came to be on the bonnet, she referred to a statement she had made on 12 September 2017 when she was interviewed by an investigator, in which she had said that the respondent “dived on the bonnet”. Ms Ferguson recalled that the respondent was “sitting up” on the bonnet with her back to the windscreen. Ms Ferguson said that the Astra “accelerated away quite sharply”. In her statement to the investigator dated 12 September 2017, Ms Ferguson estimated that the speed of the Astra increased to about 50kph.

Photographic evidence

46. Photographic evidence showed that the passenger side of the front windscreen of the Astra was cracked. The crack began near the top of the windscreen close to the centreline and further cracks radiated from this central point. Mr King SC, who appeared with Mr O’Rourke for the respondent, confirmed at the hearing of the appeal that the primary judge had accepted the appellant’s case that the windscreen had been damaged when the respondent “shoulder-charged” the Astra as she jumped onto the bonnet.

Physical evidence found on Boundary Street

47. Two metallic letters, “C” and “D”, were found on the roadway of Boundary Street, just to the left of the commencement of the dedicated right-turn lane into Hill Street. These letters were missing from a strip on the front door on the passenger side of the Astra. There was also a scuff mark and minor indentation on its side door.

Mr Myers’ evidence

48. Mr Myers took a video on his phone from a balcony on the eighth-floor of the Hotel Komune. Mr Myers said that he started to use his phone to film the events because he heard yelling and shouting from the Twin Towns carpark and thought that there was going to be a fight. He said that he could see:

“A group of people in the carpark next to Twin Towns that were yelling and shouting and a car, a white ute was driving past a couple of times and people were jumping in and out of that and yelling and carrying on and I thought that there was going to be a fight and the guy that was repairing the window with me had just left and, yeah, I kind of just wanted to - I thought there was just going to be a fight, so I started filming.”

49. In his interview with police on 14 April 2017, he said:

“… they all just started swearing and running onto the road and, I dunno, my instincts just said, Oh something’s gunna bad, something’s, I, I felt something that was gunna bad be happen.”

50. From his elevated position, Mr Myers saw a silver sedan (the Astra) coming down Boundary Street from the east. Mr Myers said that he saw the Astra come and pull up on Boundary Street and slowed down and stopped but then it started to speed up. He said “[the respondent] jumped on the front of the bonnet and then it … blasted off and went around the corner and she got flung off”. He confirmed that the Astra was stationary and in the middle of the road when the respondent jumped on it.

51. He saw a “young lady [the respondent] run in the direction of the car.” Then the car “slowed down”, there was a “little pause”, during which the car may have come to a stop, following which “the young lady climbed onto the bonnet.” Mr Myers disagreed that she had “shoulder charged” the car.

52. Mr Myers said that the respondent had jumped on to the bonnet of the Astra when it was closer to the intersection with Hill Street than to the intersection with Coral Street.

53. Mr Myers then started filming. The video was directed to, and focussed on, the intersection between Boundary Street and Hill Street. It opened with the noise of an approaching car, accompanied by a “thud” or a “bang”. After approximately two seconds, the appellant’s car came into view in the turning lane on Boundary Street, with the respondent seated on its bonnet. As the Astra made the right turn into Hill Street, the respondent, whose body was not in any way restrained, continued in the direction of travel (along Boundary Street), and was thrown from the bonnet of the vehicle onto the roadway. The video also shows that there was only one car parked on the northern side of Boundary Street in the angle parking spaces near Hill Street. After the respondent came off the bonnet of the Astra, three apparently young females came to her aid within a few seconds. Ms Ferguson and one of their group, Jewel, were the first on the scene.

54. A couple of seconds after Mr Myers had started to film, he heard the bang. He agreed that it was “possible” that it was something striking the car although he did not see that occur. He said that the car sped up while the respondent was on the bonnet, before slowing down for the corner and she came off and hit the bitumen when the car turned right into Hill Street. Mr Myers could not recall seeing any other people in the vicinity of the car and confirmed that the people were still in the carpark. He estimated that the Astra travelled for “50 metres or so” with the respondent on its bonnet.

55. When Mr Myers was interviewed by police on 14 April 2017, he indicated that there were people gathered in the green area on the other side of Boundary Street from the intersection with Hill Street at the time the respondent jumped onto the bonnet of the Astra. In his oral evidence, Mr Myers said that the people were gathered between 30m and 50m away from the intersection with Hill Street.

Justin Russ’ statement

56. Shortly before the incident, Justin Russ (who did not give evidence as he could not be located but whose police interview dated 15 September 2017 was tendered in the respondent’s case) was inside his Ford transit van, which was parked on Boundary Street, two carparking spaces before the intersection with Hill Street. He had been disturbed by the sound of “drunk youths” and bottles breaking (which he described as “quite a common event for that time of night”). He was trying to get back to sleep when, about sixty seconds after hearing the bottles smashing, he heard a car accelerate down Boundary Street. He “heard the impact of the car with something”. As a consequence, he sat up so that he could see what was happening through the side and back windows of his van. He first saw the Astra when it was already within the dedicated turning lane. He saw the respondent on the bonnet of the Astra and saw that when the car “veered around the roundabout … the girl flew off the bonnet.”

57. Up to about two minutes after the respondent had hit the roadway, Mr Russ called Triple-0 for an ambulance. Other evidence established that the Triple-0 call was received at 1.26am.

David Mulholland’s evidence

58. David Mulholland was also in his vehicle, a Winnebago, which was parked next to the median strip of Boundary Street near its intersection with Hill Street, facing in a south-east position in an angle park and directly level with the right hand turn lane into Hill Street. He had been trying to get to sleep since about 9pm. However, at about that time, he heard young people shouting allegations about a handbag or handbags being stolen. Shortly afterwards, the police came but, after they left, the fighting resumed.

59. About half an hour before he saw the Astra, Mr Mulholland saw a white utility vehicle drive along Boundary Street, which was being chased as it went out of the carpark and onto Boundary Street. People were “punching it and kicking it and yelling and screaming” at it. This occurred on at least three occasions, the most recent of these being about half an hour before the Astra came past.

60. Because of the altercations which were happening between youths in the park and with respect to the white utility, Mr Mulholland did not want to get out of his van. He agreed that it was a “frightening situation”. He said that even after the police had left [at about 9pm]:

“… they started up and there’s more teenagers come, and the fights went to four different locations over in the Twin Towns Park there and they were still fighting and carrying on. They were chasing the ute out of the carpark and violently attacking it and the ute would keep stirring the possum up, and there was three people in that ute.”

61. After 1am, Mr Mulholland heard “all these human sounds of squealing and … noises and fighting and screaming and swearing” before it went quiet briefly, after which he heard a “thud”. The thud did not come from the intersection with Hill Street; rather, it came from either Ward or Coral Street “towards the laundromat”, where a group of youths had congregated after they had crossed the grass centreline of Boundary Street after having left the park. Mr Mulholland said that after he had last seen the white utility (half an hour before the Astra appeared):

“… there was no activity over in the Jack Evans Park by this stage because they’d left there and they walked over Boundary Road up near Coral Street and crossed over and they were congregating up near the laundromat which is Ward Street in that precinct there. They mightn’t have been right on the corner of Ward Street but they were in that area because I got down out of my bunk and I looked out my kitchen window and I could see the silhouette of the street lighting up there. I could see - hear the – definitely hear the noise and I, I, I could see the bodies moving, flickering across, the shadows flick across up there but I really couldn’t say because it was so dark but I mean, you could see the silhouettes, yeah, and so I knew they were up there.”

62. Mr Mulholland was on his guard because he was concerned that his van would be damaged.

63. About six to eight seconds after Mr Mulholland heard the thud, the Astra appeared within Mr Mulholland’s range of vision. He saw the Astra “racing down the street” with a “girl on the bonnet.” His initial thought was that “they’re just joyriding.” He said, in examination in chief that he had a “180 degrees visual of that whole Hill Street and Boundary [Street] intersection”. However, in cross-examination, he agreed that he could only see the Astra through the “small window on the driver’s side” because there was no forwards vision and could not see the Astra until it passed in front of his car.

64. Mr Mulholland described the respondent’s position as follows:

“She was slumped on the bonnet. So, her arms were limp beside her. She wasn't hanging on. Her arms were limp beside her. Her head was forward of her torso which was back, slumped against the windscreen. Her head was forward, not touching the windscreen. And her mouth and eyes were open but she wasn't there … she was basically nearly in the middle of the bonnet.”

65. Mr Mulholland said that the Astra “was decelerating and [braking] at the same time, going down and it ran around that corner rather fast for what it should be.” He saw the Astra when it was about 40 feet from where the respondent came off the bonnet and saw it speeding around the corner and not stopping. He said that no one was chasing the Astra. He also said that, at that time, there were “one or two people from the nightclub on the roundabout at Hill Street”.

66. Mr Mulholland saw a young man aged about 20 who was “well-built” and had a “surfer’s singlet on”, carrying a rectangular box which played “full-on loud dance music” (the boom box). Mr Mulholland had heard that he was the boyfriend of the girl who had had her handbag stolen. He said that neither the man with the boom box nor any “of the boys came down from up near the laundromat at all until after the police had arrived [after the respondent had come off the bonnet] and then they basically disappeared over the park and went home.”

Evidence of what occurred after the respondent came off the bonnet

67. The appellant drove up Hill Street to a carpark. She and her three passengers got out of the car. The appellant telephoned Triple-0 “because someone had jumped on [her] car.” She did not tell the operator that the respondent had come off her vehicle onto the road. The appellant did not notice any blood on Ms Ribbons.

68. The primary judge extracted significant parts of what the appellant said in the Triple-0 call in the judgment at [32], as follows:

“Hi. Um, I actually have just got a phone call and I actually just came in to Coolangatta.

Ah, my friend that she was ... So there was a lot of fights happening.

Anyway, I got her to jump in the car with me so she was safe, and um are, a young girl, I'm not sure what age, like maybe 18 ...

I was driving away and she actually jumped on my car and cracked my windscreen and someone, some other boys, like punched my car and I’m just a bit worried just in case they started any more mischief

I ended up leaving and just, I parked my car ... But we are now one could really see it, I guess you could say.

I was there. I've actually just, like, I just ended up driving off even though she, like, jump on my windscreen and cracked it. I just drove off anyway, and, um, just parked my car up the top of Greenmount.”

69. The Triple-0 recording also recorded Ms Ribbons speak to the operator and say:

“- - - I was just with one of my mates, oh, and ..... I was just with one of my mates down there and then there was a group of boys that just started fighting and I wanted to get out of there.

…

And, um, the girl ..... the girl, the girl ran to the, towards the car going, Don't you let them leave, or something so, yeah, and then she just jumped and smashed it, and yeah.”

70. Ms Ribbons said in evidence that the appellant had told her and the other two passengers to get out of the Astra because she thought someone would chase them up the hill but she herself could not recall seeing anyone chase the car. Ms Ribbons said that after this incident, the appellant was “very timid” and “didn’t even leave her room. It completely changed her.”

71. Mr Myers told police in his interview on 14 April 2017 that after the ambulance arrived at the scene, Mr Court (who had been a passenger in the appellant’s car) came over. He was crying. Mr Myers recognised Mr Court as they had been to school together.

72. Mr Kellehan said in his statement that when he saw the respondent come off the bonnet, he went over, with others, to help her. He was carrying his boom box (as was depicted in the video).

Evidence of the police investigation

73. Senior Constable Mark Fogarty viewed the film taken by Mr Myers and calculated the speed at which the Astra was travelling along Boundary Street between two fixed reference points. As the Astra travelled 21.6m in 2.41 seconds, its average speed was approximately 32kph.

74. Senior Constable Fogarty also interpreted the film in a part of his statement tendered on behalf of the appellant (and not objected to) and said:

“As the Holden Astra reaches the eastern side of the intersection with Hill Street it can be seen to commence to steer to its right. At this same time [the respondent] can be seen to appear to try and dismount the vehicle by straightening her legs out over the nearside mud guard. As the Holden Astra commences to turn right at the intersection into Hill Street, [the respondent] can be seen to extend her legs further out to make contact with the roadway as she moved in a twisting motion while at the same time extending her right arm as she commences to fall backward, first landing on her buttock/lower back area then rolling backward striking the back of her head heavily on the roadway and rolling several metres through to her position of final rest upon a section of painted traffic island on the western side of the intersection.”

The judgment

The structure of the judgment

75. Before setting out the primary judge’s findings which are relevant to the grounds of appeal, it is convenient to set out the structure of the judgment (by reference to headings or content) in order that his Honour’s findings can be seen in context. This is particularly relevant because of the numerous challenges to factual findings and also the allegation that the primary judge’s reasons were insufficient. The structure of the judgment is as follows.

Heading	Paragraphs
Judgment 29 June 2022	1-5
The Evidence	6-43
- The plaintiff	6-7
- Christopher Myers	8-9
- The Video	10-12
- David Mulholland	13-15
- Tiarni Ferguson	16-19
- Jacob Kellehan	20
- The defendant Brooke Catlin	21-33
- Rebecca Ribbons	34-43
Common Law Principles	44-45
Discussion	46-55
Legislation
Civil Liability Act	56-73
- [s 50]	56-57
- [contributory negligence]	58
- [self-defence, s 52]	59-60
- [damages limitations – s 53]	61-62
- [s 54]	63-69
- [s 57]	70-71
- [s 5D]	72-73
Conclusion	74-75

Factual findings

76. The primary judge accepted that the video showed that the respondent was trying to get off the bonnet of the Astra at about the time it was turning into Hill Street. His Honour noted that the video did not depict any people chasing the appellant’s car or converging on the roundabout. He found, at [12] (challenged in grounds 7a and 7e), that:

“The video shows no crowd or group of people chasing the [appellant]'s car or converging on the roundabout. The [appellant] had travelled 70m from the place where she says she felt threatened. She had ample time space and opportunity to slow or stop the car before the roundabout allowing [the respondent] to alight safely from the bonnet.”

77. The primary judge said, relevantly, of Mr Mulholland:

“13   On the night in question Mr Mulholland, a tourist from Victoria, was parked in his Winnebago motorhome on the roadway beside Jack Evans Park. He was kept awake by periodic noises of ‘fighting and screaming and swearing and everything like that and loud music’ coming from the park. He heard references to stolen handbags.

…

15   Mr Mulholland said that there were one or two people at the roundabout at Hill Street at the time.”

[These findings are challenged in ground 7g]

78. The primary judge found at [26] (challenged in ground 7g):

“In her record of interview Ms Catlin said that she travelled approximately 50 m with the plaintiff on the bonnet. Although in evidence she said that people were chasing her car she did not say this when questioned on the day of the event. She did say ‘I was focusing on the road.’ Mr Mulholland says that there was no one chasing the car at all.”

79. The primary judge found, at [27] (challenged in ground 7b):

“The video of Mr Myers does not contain any image of persons chasing the car. I do not accept that [the appellant] perceived at the time that she was being chased.”

80. The primary judge also found as follows:

“29   I find that at the time that [the respondent] began her attempts to get off the car [the appellant] had travelled 50 m away from the men swearing at her and was more than 50 m distant from an un-threatening group of people before her. She then knew that the [respondent] was trying to get off the bonnet and had ample opportunity to stop the car momentarily to allow this to happen.

[Challenged in ground 7e.]

30    I accept that as a result of the [respondent’s] actions [the appellant] felt fear and alarm before driving away, but I believe that she has exaggerated the extent of this alarm.

[Challenged in ground 7f.]

31   I do not accept [the appellant’s] evidence that she believed that the [respondent] still constituted a threat when trying to alight from the moving car. A momentary stop, before instant acceleration would obviate any threat.

[Challenged in ground 7f.]

32   Shortly after leaving the scene [the appellant] stopped, asked her passengers to leave the car and made a 000 call. The transcript of that call is not consistent with [the appellant] escaping a situation of grave danger. …

33   In her evidence in chief [the appellant] said at the time of this call she was still ‘petrified’. Her statement that she was ‘a bit worried’ of further ‘mischief’ is inconsistent with this state of mind.”

[Challenged in ground 7b.]

81. The primary judge did not accept Ms Ribbons’ evidence about the projectile hitting the Astra and said, at [37] (challenged at ground 7d):

“She says that when [the respondent] drove forward she saw a Boom Box thrown at the car and heard a bang. I regard this evidence as unreliable. It is improbable that the holder of a costly piece of audio equipment would risk damaging it by throwing it at the car. The video shows a person holding a Boom Box approaching the roundabout after the plaintiff was thrown off the car.”

82. The primary judge found at [40] (challenged in ground 7g):

“This narrative is inconsistent with the evidence of Mr Mulholland who said that the defendant's car ‘came racing down the street’, with the evidence of Mr Russ who said that before he heard the sound of an impact (presumably when something was thrown at the defendant's car) ‘the revving of the engine was quite loud’, the evidence of Mr Myers that after the plaintiff sat herself on the bonnet of the defendant's car ‘the car sped up,’ and the evidence of Ms Ferguson who estimated that the car sped up to about 50 km/h.

83. The primary judge summarised Ms Ribbons’ evidence as to the level of danger, the speed of the Astra and that she had seen the boom box being thrown at the Astra. His Honour considered that Ms Ribbons’ evidence “may be coloured by her concern for [the appellant].” The primary judge also found, at [43] (challenged in grounds 7a and 7c):

“Shortly before [the appellant] arrived at the park Ms Ribbons attempted to telephone her to request that she not come. She says that this was because a white utility owned by another friend had been attacked and she feared that [the appellant]'s car would be attacked. I think it more probable that because the fighting was over, and the participants had withdrawn, Ms Ribbons then believed that it was safe to remain in the park.”

Consideration of illegality and incongruence at common law

84. The primary judge set out the well-known passage from Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 at [16] in which the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) addressed the question whether it would be “incongruous for the law to proscribe the plaintiff’s conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct”.

85. The primary judge said:

“46   The illegal conduct of the [respondent] was reckless damage to property and assault. Her action in seating herself upon the bonnet of the [appellant]'s stationary car was not illegal. Further, assuming a belief, shared by many others, that occupants of the car may be responsible for stealing handbags it was not unreasonable.

[Challenged in ground 7h.]

47    The duty arose when the [appellant] drove the car forward with the [respondent] seated on the bonnet. The [respondent] was not in the course of an illegal activity when she was injured.

…

51   Mr Deakin QC submits that the breaking of the windscreen caused the [appellant] to become so terrified that she was unable to consider the consequences of her actions. In this respect the [appellant] bears the onus of proof, and I am unpersuaded.

[Challenged in ground 7f.]

52    It was quite apparent to the [appellant] that to proceed as she did raised, not just the possibility, but the near certainty that the [respondent] would suffer serious injury or death when thrown off the car.

53    Both the [appellant] and Ms Ribbons gave evidence that after moving forward the car travelled at a slow running speed, "not fast at all". I draw the inference that this evidence was given because it was obvious to them that any faster speed would place the [respondent] in danger.

54    The [respondent] was quite obviously trying to get off the car before it reached the roundabout. I am not persuaded that the [appellant] was in such fear that she believed she could not momentarily stop or slow the car to allow the [respondent] to get off.

55    I am not persuaded that the cause of the [respondent’s] injuries was her earlier damage to the window rather than the [appellant]'s later conscious and unreasonable decision not to slow down or stop.”

Contributory negligence

86. The primary judge found, at [58] that “comparing [the respondent’s] culpability with that of [the appellant] … her damages should be reduced by 25%” for contributory negligence. His Honour also said, in the conclusion to the reasons at [74] that the respondent’s damages were to be reduced by 25% because of contributory negligence. This assessment is challenged in grounds 9 and 10. The allegation that the reasons are insufficient is made in ground 8.

Self-defence

87. The primary judge set out ss 52 and 53 of the Act. His Honour said at [60]:

“I am unpersuaded that the [appellant], knowing that the [respondent] was trying to get off the car, believed that it was necessary to continue driving without slowing or stopping to allow this to happen.”

88. The primary judge, in a passage which I take to refer to s 53(1)(b) of the Act, said, at [62]:

“I find that given the gravity of the [appellant]'s culpability, and the serious consequences suffered by the [respondent], a failure to award damages in this case would be harsh and unjust.”

Section 54 of the Act

89. At [63], the primary judge set out s 54 of the Act, adding emphasis to s 54(2), which provides that the section does not apply to an award of damages against a defendant if the defendant’s conduct that caused the injury constitutes an offence, whether serious or otherwise. His Honour referred to regs 38 and 119 of the Road Transport (Driver Licensing) Regulation 2017 (NSW) (the Regulations) which had the effect that the appellant was in breach of her provisional licence because she was driving between 11pm and 5am with more than one passenger who is younger than 25 years of age. It was accepted that all three of the appellant’s passengers were younger than 25 years of age.

90. The primary judge found that, because of s 54(2), s 54 did not prevent an award of damages to the respondent and said, at [68]:

“It would appear obvious that this regulation was designed to reflect common knowledge that teenagers are lacking in judgement and disposed to encourage risky behaviour in their peers. [The appellant] says that one of her passengers said ‘Go Go’ when told to stay. This is precisely the behaviour the regulation was designed to prevent.”

91. The primary judge set out s 5D of the Act and then said, at [73]:

“Because the negligence of the defendant in failing to permit the plaintiff to alight from the bonnet of her car was associated with the near certainty of the plaintiffs actual injuries, and posed no risk to the defendant, I am persuaded that the responsibility for that harm should be imposed upon the defendant.”

The grounds of appeal

Grounds 8 and 9: alleged insufficiency of reasons

92. Before turning to the challenges to the factual findings (ground 7), I propose to address, in general terms, the principles which apply to a ground alleging insufficient reasons (grounds 8 and 9).

93. The purposes of the judicial obligation to give reasons which set out the material findings of fact and explain why a decision has been reached include that the unsuccessful party is entitled to know why he or she has lost and also whether any error might warrant a challenge to the decision by an appeal: Pettitt v Dunkley (1971) 1 NSWLR 376 at 382 (Asprey JA) and 388 (Moffit JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 (McHugh JA).

94. In order to discharge this obligation, it was, accordingly, necessary for the primary judge to say why he was satisfied that the respondent had proved her case in negligence; why the appellant had not made out any of the defences on which she relied; and the reasons for the determination of the percentage reduction for contributory negligence. The reasons were required to include reference, where appropriate, to common law principles and relevant statutory provisions. The primary judge’s reasons, as with the reasons of any decision-maker, whether judicial or administrative, are to be read fairly and “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Small v K & R Fabrications (W’gong) Pty Ltd [2016] NSWCA 70 at [54] (Basten JA, McColl and Simpson JJA agreeing), citing, at fn 25, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456.

95. In Strbak v Newton [1989] NSWCA 202 at 3 (referred to in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) at [73] (Bell CJ)), this Court (Samuels JA, Gleeson CJ and Priestley JA agreeing) considered the obligation of District Court judges to give reasons in the context of a claim for damages in negligence.

96. Samuels JA said at 7:

“… the giving of reasons is an incident of the judicial process, apart altogether from the requirement that those reasons should be given which are necessary to provide a technical basis for an appeal. They are an indication that the judge has considered the material and the arguments of the parties. It is ane [sic] aspect of the requirement for procedural fairness, but it is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.

In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue. Trial judges must always endeavour to balance their duty to explain with their duty to be brief.”

97. In Orr at [74], this Court approved the observations of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 that, when making a discretionary judgment, it is sufficient “if the inference as to what is found is appropriately clear” from the judge’s reasons.

98. Mr Deakin KC, who appeared with Mr Kelleher SC for the appellant, contended that the primary judge had failed to give reasons for finding that a duty was owed, that the appellant breached the duty (and in what respect) and why the discount of 25% was allowed for contributory negligence.

99. This complaint must be seen in the context of the relief claimed in the amended notice of appeal, which is that the appeal be allowed. As referred to above, the appellant did not seek a re-trial. Having regard to s 75A of the Supreme Court Act, even if this Court were to find that the primary judge’s reasons were inadequate, this Court would still be obliged to make necessary findings of fact, based on the evidence, and subject to the requirements of procedural fairness.

Factual findings in ground 7

100. It is convenient to address the challenge to the factual findings in ground 7 before turning to the remaining grounds.

Challenge to findings in the first sentence of [12] and [43] of the judgment (ground 7a)

101. Paragraphs [12] and [43] (set out above) reflect, in part, the primary judge’s assessment of the credit of the appellant and Ms Ribbons and his finding that they exaggerated the threat (at [30], [31] and [51]) as well as his finding that Ms Ribbons’ evidence was influenced by her concern for the appellant (about which the primary judge commented in the course of the trial by referring to Ms Ribbons as “an advocate”). It is plain from his Honour’s reasons that he was sceptical about their evidence because of its inconsistency with objective evidence (such as with respect to their assessment of the speed of the Astra, which he regarded as substantially understated).

102. Mr Deakin contended that the primary judge did not adequately take account of the independent evidence of Mr Myers that, before he started filming, he had heard yelling and shouting from the Twin Town carpark (where the respondent was, at that time, as well as at an earlier point of time) and that he had seen and heard the white utility revving, which made him think that there was going to be a fight.

103. Further, Mr Deakin relied on the damage to the passenger side of the car and the presence of the letters “C” and “D” on Boundary Street, which he contended constituted independent, unequivocal evidence that something was thrown at the Astra when it was travelling between the point at which the respondent had got onto the bonnet and when it reached the roundabout. Mr Deakin also submitted that the reference to “instant acceleration” in [31] was sufficient to indicate that the primary judge considered that there was a threat to the appellant at an earlier time and that there was, at least the potential of a further threat, which was why “instant acceleration” was thought to be required.

101. Mr Deakin submitted that none of the primary judge’s findings about the evidence was demeanour-based and that, accordingly, this Court was in as good a position as his Honour to assess the evidence and was obliged to review it to assess the appellant’s challenges to the factual findings.

102. The advantages enjoyed by a primary judge (and the corresponding limitations of an appellate court) are not limited to the opportunity to see and hear the witnesses give evidence: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ). These advantages include the opportunity to receive and consider the entirety of the evidence as it is given and to reflect on that evidence as a whole: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) [1999] HCA 3; (1999) 73 ALJR 306 at [89]-[91] (Kirby J).

103. However, Mr King did not contend that it was not open to this Court to conduct a review all of the evidence and come to its own conclusions or that this Court was necessarily bound by the primary judge’s assessment of the evidence of the appellant and Ms Ribbons. In these circumstances, I propose to conduct a “a ‘real review’ of the evidence given at first instance and of the [primary] judge’s reasons for judgment to determine whether the [primary judge] has erred in fact or law”: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] (Bell, Gageler Nettle and Edelman JJ).

104. The primary judge’s findings in the first sentence of [12] and [43] were supported by other evidence adduced in the trial. Mr Mulholland did not see anyone chasing the Astra and said that there were only one or two people at the roundabout at Hill Street (none of whom was present, as the video reveals, until after the respondent had come off the bonnet, when three women came to her aid and later, the male with the boom box arrived). Mr Mulholland also said that he had last heard the white utility (and associated ruckus) about half an hour before the respondent came off the bonnet. Further, the appellant herself considered that she and her passengers were “safe” once they were within the confines of the vehicle. In her police interview, she did not mention that there were any people chasing her car.

105. While Mr Myers decided to take out his phone to film what was happening below because of his sense that something bad was going to happen, the primary judge preferred other evidence of what occurred before the Astra came into his view (as depicted in the video). The primary judge found that Mr Myers’ view of the respondent getting onto the bonnet (and associated events) was “partly occluded by foliage”. The limitations of Mr Myers’ vantage point are evident from the video which does not include any footage about those events before the car reached the intersection with Hill Street.

106. The sounds which Mr Myers had heard included the white utility “revving” and were to be distinguished from the respondent’s own behaviour. Ms Ribbons confirmed in cross-examination that she knew the driver of the white utility and that she had seen people around the vehicle. At that stage, Ms Ribbons had seen the respondent before (a matter which she had forgotten by the hearing) but on that occasion, the respondent had just been watching some males fight.

107. While Ms Ribbons said that males were chasing the Astra, the weight of evidence did not support this. Further, her evidence of projectiles being thrown at the Astra received little support from the evidence, apart from the dislodgement of two of the letters from the passenger’s side panel and the sound of the thud (which is audible on the video). Given the unreliability of much of her evidence (which was not supported, or was contradicted by, other witnesses), no firm conclusion can be reached as to the object which caused the letters to be dislodged (although the inference was available, as referred to below, that the letters were dislodged as a result of something being thrown at the car and hitting the passenger side door).

108. The assessment of the reliability of the evidence of the appellant and Ms Ribbons must also take into account their motive, which, as Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 is an “aspect of probability.” The appellant had answered Ms Ribbons’ call and come to the park to collect her. She had undoubtedly been confronted with a difficult situation, not least because the Astra was her mother’s car and the windscreen had a spiral fracture by reason of the respondent hitting it forcefully (as the primary judge found). The appellant was a “P” plate driver and inexperienced. It would appear that she allowed herself to be influenced by the other occupants of the car (who urged her to “go”) to drive the car, notwithstanding that the respondent was on the bonnet. It is fairly clear from her cross-examination that her thought processes were immature and did not take account of the danger to the respondent.

109. The contents of the call to Triple-0 are telling. What the appellant and Ms Ribbons entirely omitted to tell the operator was that the respondent had come off the bonnet of the Astra and was, quite probably, if not inevitably, seriously injured. This was a matter of very great moment and urgency and was much more consequential than a cracked windscreen. The making of the call and the glaring omission also demonstrate immaturity as well as a consciousness that a wrong had been done and a desire on the part of the appellant and Ms Ribbons to portray the appellant as the victim rather than as the person responsible for the harm to the respondent.

110. The appellant’s evidence was that she could not recall what speed she was travelling when the respondent was on the bonnet. The disparity between the appellant’s evidence as to the “threat” and the evidence of other witnesses could be reconciled, as the primary judge did, by the conclusion that the appellant realised that it was in her interests to exaggerate the threat with a view to explaining, and thereby excusing, her own conduct.

111. Ms Ribbons was responsible for bringing the appellant to the scene, having phoned her to ask her for a lift home. Ms Ribbons herself had been in the vicinity of the park for some hours and can be taken to have known that many young people were drinking and that there had been fights. She had also seen the respondent on the bonnet of the windscreen and appreciated that she had come off the bonnet onto the road. When the appellant stopped the Astra in the carpark further up Hill Street, its occupants, including Ms Ribbons must have appreciated that there was a real risk that the respondent had been seriously injured and that they and/or the appellant might be blamed for the harm. Ms Ribbons had told the appellant that she should drive with the respondent on the bonnet and therefore can be taken to have felt at least partly responsible for what had happened.

112. Ms Ribbons’ evidence about being covered in blood (of the male who had earlier fallen after having been punched) was hyperbolic and unreliable. Had this, in fact, been the case, it could have been expected that the appellant would have noticed it. Further, she, too, understated the speed at which the appellant drove the Astra, with the evident intention of protecting her friend (for whom she may have felt responsible, having called her to the scene).

113. It is also significant that Mr Court arrived at the roundabout very soon after the respondent had come off the bonnet and was seen (by Mr Myers) to be crying. I infer that there was a realisation on the part of the occupants of the Astra that, as soon as the respondent came off the bonnet when the car was being driven at speed, there was a possibility that she had suffered serious harm, for which the appellant (together with the other occupants in so far as they had urged that course on her, or failed to dissuade her) was responsible. The Triple-0 call (and its notable omission) was an indication that they appreciated the significance of what had occurred.

114. The matters to which I have referred largely accord with the primary judge’s reasons for finding that the appellant and Ms Ribbons both gave unreliable evidence as to the extent of the threat and Ms Ribbons gave unreliable evidence as to the speed of the Astra. The primary judge weighed the other evidence by reference to the vantage point which the particular witness had at the time (which was limited in the case of several witnesses).

115. The primary judge was entitled to discount, or disregard, the evidence of the appellant and Ms Ribbons, in circumstances where it was plainly affected by motive and inconsistent with other independent or objective evidence and statements which they had given earlier. Further, the primary judge was entitled to regard Mr Myers’ assessment of the situation as being limited by his vantage point. While Mr Deakin’s cross-examination of the two witnesses in parked vans led to their agreement to the proposition that the situation outside was frightening, it is of significance that the yelling, swearing and fighting had ebbed and flowed for many hours before the arrival of the appellant (at least since 9pm when “the handbag thing actually started”, when Mr Mulholland was trying to get to sleep), at a time when the respondent and Ms Ribbons were both in the vicinity. Ms Ferguson had seen a fight but said that it was “all over very quickly”. The white utility appeared to be some kind of catalyst, perhaps in part because its driver was regarded, by Mr Mulholland, as “stirring the possum” but it had not been in the vicinity for about half an hour before the respondent got onto the Astra.

116. For the reasons given above, I regard the findings in the first sentence of [12] and [43] as amply supported by the evidence taken as a whole, with due allowance to the matters to which I have referred above. I am not persuaded that they should be disturbed by this Court.

Challenge to findings at [27] and [33] of the judgment (ground 7b)

120. The finding at [27] that the primary judge did not accept that the respondent perceived at the time that she was being chased was, as his Honour said, supported by the following evidence: first, the appellant’s omission to mention this when she was interviewed by police on 14 April 2017; the evidence of Mr Mulholland (who was watching the scene from his Winnebago van) that no one was chasing the car; and the video which did not show that anyone was chasing the car. Further, it is also significant that the first three persons on the scene (each of whom was female) came from the other direction (west of Hill Street).

121. Given the assessment of credibility which the primary judge made of the evidence of the appellant and Ms Ribbons, which accords with the one to which I have come as a result of consideration of the matters referred to above, I consider that the primary judge was correct not to accept that the appellant perceived that she was being chased.

122. The finding at [33] that the contents of the Triple-0 call were inconsistent with the appellant being “petrified” was, in my view (and for the reasons set out above) correct. Although the appellant must have been troubled about what had happened (the harm to the respondent and the damage to her mother’s car), the primary judge was correct not to accept the appellant’s evidence that she was “petrified” in the sense of fearing for her own safety. The word “petrified” was, in the context, a word which the appellant may have used to justify her own actions in driving away from the scene when someone had been injured as a consequence of her actions.

Challenge to findings at [43] and [51] of the judgment (ground 7c)

123. The challenge to [43] of the judgment has been addressed with respect to ground 7a.

124. The challenge to [51] (where the primary judge was not satisfied that “[the appellant] became so terrified that she was unable to consider the consequences of her actions”) was based on the proposition advanced by Mr Deakin that the primary judge had reversed the onus of proof, which at all times lay on the respondent.

125. I do not regard the finding at [51] as involving any error of principle. The respondent proved that she suffered injuries as a result of coming off the bonnet of a vehicle driven by the appellant at speed and around a corner. These facts were sufficient for the respondent to discharge the onus, of establishing, at least on a prima facie basis that her injuries were due to the appellant’s negligence. Since the appellant contended that she was not negligent because the respondent had caused a situation which meant that the appellant, despite these circumstances, did not act unreasonably, it was for the appellant to establish this. The appellant’s onus, in these circumstances, is an evidentiary one.

126. The principle was articulated in the following passage from Leishman v Thomas; Hobbs (Third-Party) (1957) 75 WN (NSW) 173 (Leishman) at 177 (Owen J):

“The onus was on the plaintiff to establish that the accident was due to the defendant’s failure to take reasonable care.  Prima facie this onus was discharged by proof that the collision took place on the defendant’s wrong side of the road, but it was open to the defendant to prove, if he could and there was evidence to support it, that he came on to the wrong side of the road without negligence because the third-party had created a state of affairs in which he had two courses only open to him, and in taking the course that he did had acted reasonably.”

[Emphasis added.]

127. It is plain from the reasons of Owen J extracted above that the evidentiary onus in such a case to prove that what would appear to be negligence is merely an error of judgment in the agony of the moment lies on the defendant (in this case, the appellant).

128. Leishman is also authority for the so-called “agony of the moment” principle (which the appellant sought to invoke in the present case) in which Street CJ said at 175:

“It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called ‘agony of the moment’, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.”

129. Mr Deakin relied on decisions such as Abdallah v Newton (1998) 28 MVR 364 where the defendant was found not to be negligent on that basis. The facts of the cases to which he made mention are far removed from the present case. The primary judge’s rejection of the “agony of the moment” submission was correct.

Challenge to finding at [37] of the judgment (ground 7d)

130. The primary judge, at [37], did not accept Ms Ribbons’ evidence that the boom box had been thrown at the Astra while it was being driven along Boundary Street with the respondent on the bonnet.

131. Mr Deakin relied on the presence of the letters “C” and “D” on the roadway as corroborating that something had hit the passenger side of the Astra with sufficient force to dislodge the letters. He also relied on the sound that can be heard on the video of a loud “thud” as the Astra approached the right-hand turn lane.

132. He also contended that Ms Ribbons’ evidence that the boom box had been thrown at the car was “unchallenged”. I do not consider this submission to be well-founded. Mr King challenged the evidence of the appellant and of Ms Ribbons on the basis of their obvious interest to protect the appellant from the consequences of her actions by painting her conduct in the best possible light (for the reasons given above). It was not necessary for him to challenge each aspect of their evidence to make good this submission.

133. While it can reasonably be inferred that something hit the Astra to cause the letters to become dislodged, it does not follow that the object was the boom box. The only evidence to support the proposition was that of Ms Ribbons whose evidence was, for the reasons I have given above and those given by the primary judge, unreliable. The appellant herself said that she heard a bang which she thought was on the roof of the Astra and that she could not identify what had caused it. The appellant gave no other evidence of anything striking or connecting with the Astra while it was in motion.

134. In these circumstances, I discern no error in the primary judge’s refusal to accept Ms Ribbons’ evidence that the Astra was struck by the boom box. Indeed, the evidence tends to the contrary, given the location of the boom box after the respondent came off the bonnet. The video shows a man holding the boom box and approaching the respondent, who is lying on the road. Mr Kellahan identified himself as having carried his boom box to the scene.

Challenge to findings at [12] and [29] of the judgment as to when the respondent ceased to become a threat (ground 7e)

135. Mr Deakin contended that the respondent remained a threat to the appellant and to the occupants of the Astra throughout until at least the time she came off the bonnet at the roundabout. The primary judge considered that the appellant could have allowed the respondent to get off prior to that, implicitly without danger to the appellant and the occupants of the vehicle.

136. Mr Deakin’s submission is unreal and unfounded. Although the respondent managed (through an operation of forces which is not entirely clear) to cause the windscreen of the Astra to crack as she came onto the bonnet, the respondent was, relevantly, a young female who was unrestrained on the bonnet and without any kind of weapon, much less one that could cause any harm to the occupants of the vehicle. By contrast, those inside the vehicle were encased in a metal structure which was capable of being locked. Further, at least two of them (the appellant and Ms Ribbons) had mobile phones which were operational. The statements that the appellant made to police as to her belief that she and the other occupants of the vehicle were safe once they were all inside the car were both reasonable and accurate. Further, although the windscreen was cracked, it did not shatter and the integrity of the vehicle was not breached by the damage to the windscreen.

137. The position of the respondent on the windscreen was also unthreatening. She had her back to the windscreen and was facing forward. She was in no position to do anything to harm the occupants. The respondent was the one who, in these circumstances, was in grave danger of harm from the time when the vehicle started to move forward.

Challenge to finding that the appellant and Ms Ribbons exaggerated their state of fearfulness at [30], [31] and [51] (ground 7f)

138. The challenge to these findings fails for the reasons I have given above concerning the unreliability of the evidence of the appellant and Ms Ribbons.

Challenge to the primary judge’s preference for the evidence of Mr Mulholland to the evidence of the appellant, Ms Ribbons and Mr Myers in the findings at [13], [15], [26] and [40] of the judgment (ground 7g)

139. As referred to above, the primary judge discounted the evidence of the appellant and Ms Ribbons for the reasons already given. While some of Mr Myers’ evidence was accepted (and substantial weight was given to the video evidence which he took), Mr Mulholland’s evidence was preferred in some respects because of Mr Mulholland’s position which was at eye-level, just across from the right hand turn lane. Accordingly, whereas Mr Myers’ range of vision was obscured by trees, Mr Mulholland’s vision of what was happening on Boundary Street was better, in some respects to Mr Myers. The findings made by the primary judge were not only open but also correct, having regard to these matters which were properly taken into account as part of the fact-finding function.

Challenge to finding regarding the respondent’s belief that there was a stolen handbag in the vehicle (ground 7h)

140. This challenge appears to be a reference to paragraph [46] where the primary judge found that the respondent’s conduct in seating herself on the bonnet of the Astra was not unreasonable “assuming a belief … that occupants of the car may be responsible for stealing handbags”. It is evident from the primary judge’s wording that his Honour did not actually find that the respondent believed that the occupants of the car may be responsible for stealing handbags but merely, if she had such a belief, sitting on the bonnet of a (stationary) car was not unreasonable (presumably because it would cause any reasonable driver to refrain from putting the car in motion in the same way that standing in front of a stationary car would tend to have that effect).

141. I do not regard this finding as particularly material. The more significant finding was that the respondent’s act of sitting on the bonnet was itself not illegal. The respondent’s illegality was limited to reckless damage to the windscreen of the Astra and the assault (in the sense of threat of harm) which arose from the same acts which caused the reckless damage to the windscreen.

Conclusion regarding ground 7

142. For the reasons given above, none of the challenges to the factual findings in ground 7 has been made out.

143. I now propose to turn to the remaining grounds, which relate to the findings of duty, breach, the consequences of illegality and the statutory defences.

Alleged failure to give reasons for finding that there was no incongruity (ground 8) and alleged error in finding of a duty of care in light of alleged incongruity (ground 1)

Alleged insufficiency of reasons for finding that a duty of care was not incongruous (ground 8)

144. The primary judge addressed the alleged incongruity between holding the appellant liable for the injuries sustained by the respondent in circumstances where the respondent had acted illegally at [44]-[55]. His Honour found that, although the respondent was guilty of reckless damage to property (which was accepted to amount to a finding that the force of the respondent’s body when she ran into the Astra was sufficient to crack the windscreen) and assault (meaning doing something intentionally or recklessly which causes another person to fear immediate and unlawful violence), sitting on the bonnet of the Astra was not unlawful. In other words, the assault (being the threatened violence) was committed by running up to the car and launching herself, head or shoulders first, onto the bonnet and at the windscreen, not by merely sitting on the bonnet.

145. The primary judge found, further, that the respondent was not in the course of any illegal conduct when she was injured (because the reckless damage to property and the assault were both in the past and had ceased by the time she had settled onto the bonnet with her back against the windscreen). The primary judge also found that the respondent’s injuries were not caused by her illegal conduct.

146. Each of the matters addressed by the primary judge was germane to the question of incongruity and sufficiently explained his Honour’s conclusion that it would not be incongruous to find that the appellant owed the respondent a duty of care.

147. In the absence of incongruity in the Miller v Miller sense, the duty of care owed by the driver of a motor vehicle to a person seated on its bonnet would appear to me to be so obvious as to go without saying (nor did the appellant contend to the contrary). Indeed, the primary judge expressly found, in [47], that the duty arose when the appellant drove the Astra forward with the respondent on the bonnet. Further, a finding of negligence (such as his Honour made) carries with it, by necessary implication, the finding that there was a duty, breach of which amounted to negligence.

Alleged error in finding of a duty of care in light of alleged incongruity (ground 1)

148. The facts of the authorities relied on by Mr Deakin (including Cusack v Stayt [2000] NSWCA 244) are far removed from the present case. Indeed, he was unable to point to any case where duty was denied on the basis of incongruity which did not arise from a joint illegal enterprise between the plaintiff and the defendant. The reason for an incongruity arising in such cases is that both the driver and passenger, being parties to a joint illegal enterprise, are held criminally liable for the crimes of each other. Thus, it would be incongruous to find that, notwithstanding joint criminal liability, the passenger could recover damages in a civil action for the negligent acts of the driver: see Miller v Miller at [91]-[93]. The plaintiff in Miller v Miller was, however, entitled to recover because she was found to have left the joint criminal enterprise before the accident occurred.

149. Even in such cases, the scope of the joint illegal enterprise is important to the issue of incongruity, as is evident from the following example postulated by Leeming JA in Bevan v Coolahan (2019) 101 NSWLR 86; [2019] NSWCA 217 at [61] of an agreement between driver and passenger to buy an ice pipe with which to consume methamphetamine (both constituting criminal offences). His Honour considered that the driver would, in those circumstances, still owe a duty of care to the passenger since there was no incongruity in imposing such a duty, since:

“Possessing the ice pipe does not of itself affect driving, and the purpose underlying the statute criminalising doing so is not incongruous with the possessor’s duty to take reasonable care to a passenger who is complicit in the offence.”

150. In the present case, the appellant and the respondent were strangers. Their only connection was that the respondent had damaged the appellant’s car in climbing onto its bonnet. It was the appellant’s decision to drive the Astra while the respondent was positioned on the bonnet. The respondent’s response to the situation – to hold on and then try to get off the car – was formulated entirely independently of the appellant’s state of mind. The cause of the respondent’s injuries was the appellant’s act in driving the vehicle with the respondent on the bonnet and failing to allow her to alight. The present case had none of the features of incongruity found in the cases to which Mr Deakin made reference. I am not persuaded that any error has been shown in the primary judge’s conclusion that there was no incongruity such as to prevent a duty of care arising.

Alleged error in failing to find that the respondent threw herself at the stationary Astra with sufficient force to shatter the windscreen (ground 3)

151. I do not understand this ground to be pressed in light of Mr King’s concession that the primary judge’s finding that the appellant was guilty of reckless damage to property (the Astra) and assault ([46] of the judgment) related to her act of throwing herself at the windscreen with such force as to cause it to crack. Mr King accepted that this finding was sufficient to indicate that the primary judge had rejected the respondent’s case at trial that the crack was caused when her head was thrown back against the windscreen when the appellant accelerated from the stationary position.

Alleged error in finding a breach of duty on the part of the appellant in failing to stop or slow down at the point at which the respondent came off the bonnet (ground 2)

152. The first question that arises in relation to ground 2 is what the primary judge found the breach to be. Mr King submitted that the primary judge accepted the respondent’s pleaded case at first instance that the first and primary breach of duty was putting the Astra in motion (from a stationary position) with the respondent on its bonnet. The respondent’s case, in the alternative, as put in submissions to the primary judge, was that the appellant’s failure to slow or stop thereafter amounted to a further breach.

153. Mr Deakin submitted that the primary judge had not made any such finding and that the breach found was the failure to stop or slow down the moving vehicle to allow the respondent to alight from her position on the bonnet. He submitted that, in the absence of a notice of contention, Mr King was not permitted to argue that the primary judge’s finding of breach could be supported on that basis. Mr King declined to put on a notice of contention and argued that no such notice was required.

154. It is, accordingly, necessary to review the reasons of the trial judge to ascertain what his Honour did find. In doing so, it is important to bear in mind that the obligation to give reasons can be fulfilled in different ways. Some judges favour headings; others do not. Some make detailed references to applicable statutory provisions (including by setting them out); others refer to the provisions and adopt the statutory language in their reasons to indicate that regard has been had to them. There are, in other words, many different ways to express reasons so as to expose the reasoning process and the findings. The number of words required varies from judge to judge and also depends on the issues raised at trial.

155. The respondent’s primary case at trial was that, by putting the Astra into motion, the appellant breached the duty of care which she owed to her as a person on the bonnet of the car. The respondent submitted that, once the appellant put the car in motion, the risk of harm was present and that it was almost inevitable that it would ensue, having regard to the forces involved. Her alternative case was that, having commenced driving, the appellant should have stopped to allow the respondent to get off the car.

156. The appellant’s case at trial was that her conduct in driving with the respondent on her bonnet was not unreasonable in all the circumstances and that she had put the car in motion in the “agony of the moment” and ought not be held responsible for the consequences. The evidence of the surrounding circumstances was particularly relevant to this case. She also relied on an alleged incongruity between the respondent’s illegal conduct and the imposition of a duty of care on the appellant for harm caused to her, together with various statutory defences, relevantly, ss 52, 53 and 54 of the Act.

157. Thus, his Honour was required, in the reasons, to set out the relevant findings of fact and his reasons for determining the issues between the parties referred to above.

158. The structure of the reasons is also important because it provides a guide to the issues which the primary judge was addressing in the paragraphs beneath each. This is part of this Court’s obligation on appeal to read the primary judge’s reasons fairly and as a whole. It can be seen from the structure of the judgment (set out in the table above) that the primary judge regarded the existence of a duty and its breach to be foregone conclusions unless the appellant could make out any of its defences, which were dealt with in turn. This approach was warranted in the circumstances of the present case because, without more, the driver of a vehicle on whose car bonnet there is a person owes a duty of care to that person, which is breached if the person puts the vehicle in motion.

159. Once one appreciates the structure of the judgment (as set out above), one can see that earlier references to the appellant being able to slow down to let the respondent off the bonnet appeared in the discussion concerning, first, the appellant’s own evidence of her fear and consternation which was led to discharge the evidentiary onus of establishing that she acted in the “agony of the moment” and, on that basis, ought not to be held to be liable; and the discussion of that “defence”. In essence, the primary judge was assessing the appellant’s evidence of the agony of the moment in the context of her continuing to drive and, indeed, turning right (thereby increasing the risk of harm) when she was, on the appellant’s own version, relatively far away from the events which had caused her consternation in the first place. His Honour was exploring the credibility of her version and that of Ms Ribbons in looking at the appellant’s conduct when she approached the intersection, rather than determining that the duty or the breach arose at that time (a case which had, in any event, never been put by the respondent).

160. The conclusions as to duty, breach and causation were sufficiently stated at [47] (where the primary judge found the duty); [52] (where the primary judge found that it was “quite apparent to [the appellant] that to proceed as she did raised … the near certainty that [the respondent] would suffer serious injury or death when thrown off the car”); and the conclusion at [73], where the primary judge found breach and causation:

“the negligence of [the appellant] [that is, the breach of the duty which the appellant owed to the respondent] in failing to permit the [respondent] to alight from the bonnet of her car [at any time before she put the car in motion and beyond] was associated with the near certainty of the [respondent’s] actual injuries [thus, the harm was eminently foreseeable], and posed no risk to the [appellant] [therefore self-defence has not been made out], I am persuaded that the responsibility for that harm should be imposed on the [appellant] [as required by s 5D(4)].”

161. It can be seen from [73] that the primary judge accepted the primary way in which the respondent’s case was put: that is, his Honour found that the appellant was negligent in failing to permit the respondent to alight before putting the car in motion. Thus, I accept Mr King’s submission that no notice of contention was required because the basis on which the respondent contended the appeal ought be dismissed accorded with the primary judge’s findings.

162. I note for completeness that the primary judge appears also to have accepted the alternative case (at [54] and [55]) that the appellant was also in breach by failing to slow or stop, having put the car in motion. However, this finding was not necessary, since the primary case had been accepted.

163. It also follows from this analysis that the basis for ground 2 falls away. Mr Deakin argued that the primary judge “erroneously focussed on the brief period from when the respondent commenced to alight” and thereby engaged in “impermissible hindsight reasoning … [to work] backwards from the decision of the respondent to let go of the vehicle in order to find a time at which action could have been taken by the appellant to avoid the ultimate result.” The fact was that, as soon as the appellant put the Astra in motion, she was in breach of the duty of care she owed to the respondent and exposed her to a foreseeable risk of harm. The prospect of that harm not ensuing once the vehicle was in motion diminished with every second of acceleration.

164. Although the primary judge did not express his finding of negligence by reference to particular provisions of the Act, it was not necessary, in the circumstances of the present case, that he do so. The risk of harm to the respondent while on the bonnet of a moving car was plainly foreseeable (s 5B(1)(a) of the Act); it was not insignificant (s 5B(1)(b) of the Act); and a reasonable person in the position of the appellant would have taken the precaution of not putting the Astra in motion while the respondent was sitting on the bonnet (s 5B(1)(c) of the Act). It was probable, if not inevitable (as the primary judge found) that harm would occur to the respondent if the appellant did not take care (s 5B(1)(a)); the harm would almost certainly be serious because of the forces involved (s 5B(2)(b)); the burden of not putting the car in motion with the respondent on the bonnet was not onerous (s 5B(2)(c) of the Act); and there was no social utility of driving a vehicle with a passenger on the bonnet (s 5B(2)(d) of the Act). Factual causation and scope of liability (under s 5D of the Act) were correctly found by the primary judge.

165. For these reasons, ground 2 has not been made out.

Alleged error in failing to find that the respondent’s illegal conduct materially contributed to the frightening situation in which the appellant could not reasonably be expected to act sensibly (ground 4)

166. This ground turns on the primary judge’s findings of fact, which have already been addressed and his Honour’s refusal to find that the appellant acted in the “agony of the moment”. The evidence showed that the respondent’s illegal conduct ceased once the windscreen was cracked and the respondent turned around with her back to the windscreen (thereby ending the assault). The appellant’s decision to put the Astra in motion was taken after these events, when the respondent posed no threat to the occupants of the Astra, at least while she remained on the passenger’s side of the vehicle and was not obscuring the appellant’s view of the road. The respondent herself was the one who was at risk of harm in that position. Accordingly, ground 4 has not been made out.

Alleged error in failing to find that the appellant acted in self-defence either at common law or pursuant to s 52 of the Act (ground 5)

167. Ultimately, the factual findings made by the primary judge were sufficient to address this ground. Because his Honour did not accept the evidence given by the appellant and Ms Ribbons of the threat posed by the respondent or others, the defence of self-defence did not really arise once the three passengers had got into the car (which occurred before the respondent recklessly damaged the windscreen). Accordingly, ground 5 has not been made out.

168. I note for completeness that the primary judge said, in [60] of the judgment, that he was “unpersuaded that the appellant, knowing that the respondent was trying to get off the car, believed that it was necessary to continue driving without slowing or stopping to allow this to happen.” This was, in part, relevant to s 52(2)(a) of the Act.

Alleged failure to apply s 54 of the Act (ground 5A)

169. In substance, the primary judge found that s 54 of the Act did not apply because the conduct of the appellant that caused the injuries (driving) constituted an offence (because she had more than one person under 25 years of age in the car, in breach of the conditions of her provisional licence) under reg 119 of the Regulations within the meaning of s 54(2) of the Act.

170. The appellant sought to challenge this finding by contending that the offence had no connection with the injury because it was irrelevant to the injuries sustained by the respondent that the appellant was driving with three passengers under 25 years of age.

171. It is unnecessary to determine the degree of causal connection between the offence and the injuries for the purposes of s 54 since the driving caused the injuries and the driving was, in the circumstances, illegal. However, even if a connection were required between the aspect of the driving that made it illegal and the injuries sustained by the respondent, I am satisfied that there was such a connection, as the primary judge found.

172. The primary judge relevantly found that one of the occupants told the appellant to “go” ([68] of the judgment). However, as referred to above, in her statement to the investigator on 29 August 2017, the appellant said all of the occupants wanted her to drive away:

“27   I was extremely frightened at that point and thought these people running towards my vehicle and the girl on my bonnet were trying to get me. The other people in my vehicle were screaming in fear for me to ‘Go, go, go.’”

[Emphasis added.]

173. The effect of regs 38 and 119 is to criminalise the driving of vehicles by P-plate holders who, between the hours of 11pm and 5am, have more than one passenger younger than 25 years. The purpose of these regulations is to prevent a situation (such as would appear to have occurred in the present case) where peers (who may or may not be intoxicated) may influence the judgment of the (presumably sober, but, by definition, inexperienced) P-plate driver. The risk of “group think” by young peers coming up with bad decisions in the middle of the night is notoriously high.

173. In the present case, reasonable care required that the appellant refrain from driving while the respondent was on the bonnet. That, on her evidence, “the other people” in the Astra, were “screaming” for her to drive is a classic example of poor peer-influenced decision-making leading to tragic outcomes. For these reasons, the primary judge was correct to find that, by reason of s 54(2), s 54 did not apply.

Alleged error in failing to find that the scope of liability did not extend to the harm suffered by the respondent (ground 6)

175. Section 5D(1) requires a finding of factual causation and scope of liability. In determining the latter, the Court is obliged to consider whether or not and why the responsibility for the harm should be imposed on the negligent party. For the reasons given above, once the primary judge had found that the appellant had not discharged the evidentiary onus of proving the “agony of the moment” defence and had not established any of the other defences alleged, it could hardly be genuinely in dispute, given the primary judge’s findings of fact, that the scope of liability extended to the harm suffered by the respondent.

176. The driving of a motor vehicle is an act which, while socially useful, carries with it great danger to others, and in particular a person situated on the bonnet or on the road in its path. The proposition that the scope of liability of a driver ought not extend to a passenger on the bonnet of the car (except in cases where the agony of the moment defence or other defences have been made out) is, in my view, untenable. This ground has not been made out.

Alleged inadequacy of reasons for finding the appellant liable (ground 8)

177. This ground has largely been addressed above. The primary judge found duty (and that it was not incongruent with the respondent’s own behaviour), breach and causation. His Honour addressed each of the defences alleged and rejected them for the reasons referred to above. While the reasons were relatively brief, they were sufficient to set out the findings and to explain to the appellant why she was liable for the damages suffered by the respondent.

Alleged failure to address any comparison between the culpability of the appellant and the respondent for the purposes of assessing contributory negligence and assessing contributory negligence at 25% rather than 80-90% (grounds 9 and 10)

178. Mr Deakin submitted that the references to contributory negligence in [58] and [74] of the judgment were insufficient to address ss 5R and 5S of the Act and s 138 of the Motor Accidents Compensation Act 1999 (NSW) (MACA), in particular, to address the relative culpability of the appellant and the respondent. Mr King submitted that the principles are so well known that it is unlikely that they were overlooked.

179. In order to address the sufficiency of reasons, it is necessary to have regard to what was put to the primary judge, who was addressed at length on the appropriate reduction for contributory negligence.

180. Mr Deakin submitted to the primary judge that it ought be in the order of 90-100% on the basis of the following (taken from the appellant’s written submissions at first instance):

“191   The plaintiff must have known or ought to have known that in throwing herself onto a car that was obviously about to drive off, she was likely to sustain serious injury, particularly if she fell off.

192    In undertaking the comparison of culpability in the circumstances it is the plaintiff who should be held entirely responsible for the dangerous and terrifying circumstances which arose both in the degree to which her conduct departed from the standard of care of a reasonable person and the importance of her actions in causing her own injuries.”

181. It was not suggested, on behalf of the appellant, that any subsections in s 138 of MACA other than (3) (“just and equitable” requirement) or (4) (requirement to give reasons) were applicable.

182. Mr King referred the primary judge to the relevant legislative provisions (Division 8 of Part 1A of the Act and s 138 of the MACA). He did not concede that there ought be any reduction for contributory negligence. In written submissions to the primary judge, Mr King submitted:

“129   If the Plaintiff's jumping onto the car constituted contributory negligence it was not the real cause of the Plaintiff's injuries. It was an antecedent act that ought not to have brought about the consequences it did some distance further along the vehicular thoroughfare as a result of an accelerating and turning vehicle.

130   The evidence shows that the Plaintiff got onto and was on the bonnet of the car at a point when the car was stationary. Moreover, if justification of the Plaintiff having done so is relevant (and it is submitted that it is not) that justification is to be found in the belief likely to have been held by people at the scene that the occupants or an occupant of the car being driven by the Defendant had either stolen or inadvertently taken a handbag. To retrieve the handbag it was necessary to keep the vehicle stationary.

131    However, when the Defendant decided to drive off from a stationary position with the Plaintiff on the bonnet, the Plaintiff had no further opportunity to influence the outcome of events either for better or for worse.

…

133   It is the Defendant who carries the onus of establishing contributory negligence. It is submitted that that onus has not been discharged. Alternatively, if discharged, the contributory negligence established cannot be anything other than minor.”

183. The primary judge found, at [46], that:

“… [“the respondent’s] action in seating herself upon the bonnet of the defendant's stationary car was not illegal. Further, assuming a belief, shared by many others, that occupants of the car may be responsible for stealing handbags it was not unreasonable.”

184. The primary judge found, at [55], that the cause of the respondent’s injuries was her coming off the bonnet, not the earlier impact between her body and the Astra.

185. At [73], the primary judge found that the responsibility for “that harm” (the respondent’s actual injuries”) “should be imposed” on the appellant “[b]ecause the negligence of the defendant in failing to permit the plaintiff to alight from the bonnet of her car was associated with the near certainty of the [respondent’s] actual injuries, and posed no risk to the [appellant].”

186. Although the primary judge did not refer, in terms to the applicable provisions, it cannot be inferred that his Honour did not have regard to them, since they were referred to, uncontroversially, in submissions.

187. In substance, the primary judge found that the respondent’s act of launching herself at the windscreen was not the cause of her injuries and that her act of positioning herself on the bonnet and remaining there was neither illegal, nor the cause of her injuries. Rather, the primary judge found that it was the appellant’s act of putting the Astra in motion before allowing the respondent to alight which had made her sustaining injuries a “near certainty” and one for which the appellant should be held responsible. The primary judge can be taken (by necessary implication) to have rejected the appellant’s submission that the Astra “was obviously about to drive off”, since his Honour regarded the act of putting the vehicle in motion as a negligent act which occurred when the respondent “posed no risk to the [appellant].”

188. Although his Honour made the requisite findings of fact to address the parties’ submissions, I am persuaded that his Honour has failed to comply with the judicial obligation to give reasons (or with s 138(4) of MACA) because he has failed to state why, by reference to a comparison in culpability, there was a reduction of 25% for contributory negligence. Indeed, the primary judge’s reasons are also consistent with a finding that there was no contributory negligence. Thus, although it can be inferred that the primary judge found that the relative culpability of the parties was 75% (the appellant)/25% (the respondent), the reasons are insufficient to explain why. However, this failure is of no moment, of itself, since no re-trial is sought.

189. It was common ground that the appellant was required, in respect of the assessment of contributory negligence, to show House v The King (1936) 55 CLR 499; [1936] HCA 40 error. This would require the appellant to show that the primary judge had either acted on an incorrect basis or that it was not open to the primary judge to find 25% contributory negligence.

190. I am not satisfied that his Honour acted on an incorrect basis. The primary judge’s reasons include, expressly, or by necessary implication, findings on all relevant facts put to him by the parties. Nor am I persuaded that it was not open to his Honour to have assessed contributory negligence at 25%. That the respondent may have otherwise sustained injury by falling off the bonnet (while the car was stationary) ought to have been within the respondent’s reasonable contemplation. However, contrary to the appellant’s submission that the Astra was “obviously about to drive off,” I am not persuaded that there was any good reason for the respondent to expect the appellant to put the car in motion while she was on the bonnet. I am not persuaded that any reduction greater than 25% is warranted.

191. For these reasons, neither ground 9, nor ground 10, has been made out.

Proposed orders

192. For the reasons given above, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

3. Unless an application is made in writing for a different order within 14 days, order the appellant to pay the respondent’s costs of the appeal.

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Amendments

17 August 2023 - Citation for Onassis v Vergottis corrected - coversheet; [111]

Decision last updated: 17 August 2023