Cockburn v Jacobsen

Case [2017] ACTSC 380

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cockburn v Jacobsen

Citation:

[2017] ACTSC 380

Hearing Dates:

10 – 14, 27 July 2017

DecisionDate:

13 December 2017

Before:

McWilliam AsJ

Decision:

1.    Judgment is entered for the defendants.

2.    The plaintiffs are to pay the defendants’ costs.

3.    Order 2 is stayed for 7 days.

Catchwords:

TORTS – NEGLIGENCE – Contributory negligence – damages – motor vehicle accident – whether the first defendant breached his duty of care – whether first defendant’s response was affected by extraordinary circumstances – no breach of duty found

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ss 40, 42, 43, 44, 45, 46, 47, 102

Cases Cited:

Abdallah v Newton (1998) 28 MVR 364

Angel v Hawkesbury City Council [2008] NSWCA 130
Asim v Penrose & Anor [2010] NSWCA 366
Baxter v Insurance Australia Limited t/as NRMA Insurance [2015] ACTSC 273
Blacktown City Council v Hocking [2008] NSWCA 144
Cusack v Stayt [2000] NSWCA 244; 31 MVR 517
Dawson v Fryer [2016] ACTSC 263
Eames v Shain [2012] ACTSC 116
Forge v Rewers [2017] ACTSC 179
Hendricks v El Dik (No 4) [2016] ACTSC 160
Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380
Huscher v Huscher (1999) 197 CLR 138
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529
Seta v Baker [2012] ACTSC 75
Short v Barrett (Unreported, New South Wales Court of Appeal, Clarke, Meagher and Handley JJA, 5 October 1990)
Todorovic v Waller (1981) 150 CLR 402
Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326
Warren v Gittoes [2009] NSWCA 24
Wattam v Jorgensen [2012] ACTSC 111

Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85

Parties:

Joseph Cockburn (Plaintiff in proceedings SC 410 of 2016)

William Sellick-Wilson (Plaintiff in proceedings SC 455 of 2016)

Jessica Pearse (Plaintiff in proceedings SC 456 of 2016)

Rohan Wilfred Jacobsen (First Defendant)

Insurance Australia Limited t/as NRMA Insurance (Second Defendant)

Representation:

Counsel

D Higgs SC with A Muller (Plaintiffs)

K Rewell SC with D Crowe (Defendants)

Solicitors

Maurice Blackburn (Plaintiffs)

Sparke Helmore (Defendants)

File Numbers:

SC 410 of 2016; SC 455 of 2016; SC 456 of 2016

  1. These proceedings concern an unhappy taxi ride in the early hours of the morning on Sunday, 6 November 2011.  The three plaintiffs (Mr Cockburn, Mr Sellick-Wilson and Ms Pearse) were passengers in the taxi; a Toyota Tarago with the seating capacity for eight people.  The first defendant, Mr Jacobsen, was the driver of the taxi at the time.  The journey ended when the taxi collided with a light pole on Northcott Drive, Campbell near the intersection of Northcott Drive and Tobruk Road, Campbell at approximately 1:05 am.

  1. There is no dispute that the passengers were seated on a bench-style seat behind the Mr Jacobsen throughout the journey and were each affected to some degree by alcohol. 

  1. The general route taken by the taxi leading up to the accident is uncontroversial.  The taxi travelled from Fyshwick…

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AGLC
Cockburn v Jacobsen [2017] ACTSC 380
Case
[2017] ACTSC 380
Decision Date

CaseChat Overview and Summary

In the case of Cockburn v Jacobsen, the plaintiff brought an action against the first defendant for injuries sustained in a motor vehicle accident. The plaintiff claimed that the first defendant had breached his duty of care, resulting in the accident. The second defendant was joined as a party for the purpose of a potential contribution to any damages awarded. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought damages for personal injury and loss of amenity resulting from the accident. The first defendant denied liability, asserting that the accident occurred due to the plaintiff’s contributory negligence. The first defendant further contended that any breach of duty on his part was mitigated by extraordinary circumstances.

The central legal issue was whether the first defendant breached his duty of care and, if so, whether this breach was a factual cause of the accident. The court considered whether the first defendant’s actions were influenced by extraordinary circumstances that could negate or reduce his liability. The court also assessed whether the plaintiff’s contributory negligence absolved the first defendant of liability. The court had to determine the appropriate quantum of damages, if any, to be awarded to the plaintiff and whether the second defendant should contribute to these damages.

The court found that the first defendant did not breach his duty of care, as his actions were reasonable in the circumstances. The court held that the first defendant’s response was not affected by extraordinary circumstances, and thus, he was not liable for the accident. The court further found that the plaintiff’s contributory negligence was a significant factor in the causation of the accident, thereby absolving the first defendant of liability. The court concluded that the plaintiff’s damages, if any, were solely attributable to his own negligence. Consequently, the court dismissed the plaintiff’s claim against both defendants.

The court ordered judgment in favour of both defendants. The plaintiff was directed to pay the defendants' costs. The order for costs was stayed for seven days to allow the plaintiff to appeal the decision.

Orders

Orders of the court

1. Judgment is entered for the defendants.

2. The plaintiffs are to pay the defendants’ costs.

3. Order 2 is stayed for 7 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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