Cockburn v Jacobsen
[2017] ACTSC 380
•13 December 2017
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 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 |
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.
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.
The general route taken by the taxi leading up to the accident is uncontroversial. The taxi travelled from Fyshwick to Campbell via the Monaro Highway, Morshead Drive and Fairbairn Avenue, stopping once during that part of the journey, before continuing on and turning left at a roundabout into Northcott Drive.
The parties also agree that the taxi driver lost control of the vehicle and that the vehicle travelled out of control for some distance along Northcott Drive over three traffic islands, ultimately colliding with a light pole.
The defendants accept that in the ordinary course of events, the loss of control of the taxi by Mr Jacobsen (the taxi driver) would amount to a breach of duty of care on his part, for which he and the second defendant (the compulsory third party insurer of the taxi) would be liable to the plaintiffs.
However, as will be seen, the loss of control of the taxi did not follow an ordinary course of events. The defendants contend that the circumstances were extraordinary and that the first defendant’s driving was reasonable in the circumstances with which he was faced.
The defendants allege Mr Cockburn physically interfered with the taxi driver while he was driving, including grabbing the taxi driver’s seatbelt and pulling it from behind so that it constrained his ability to move, hitting the driver’s headrest from behind so that it was felt as a blow to the head by Mr Jacobsen, and grabbing his shirt. That conduct, in the circumstances surrounding the taxi journey, induced in the taxi driver a state of panic or terror, where he thought he was going to be severely physically assaulted, to the point of death.
The surrounding circumstances or context alleged (discussed below) included the following: the ongoing aggressive verbal and physical behaviour of the two male plaintiffs (Mr Sellick-Wilson and Mr Cockburn) towards the taxi driver during the journey, the physical build of the male plaintiffs, their level of intoxication as perceived by the taxi driver, the time of night, the isolated nature of the location, the previous refusal of the plaintiffs to leave the taxi coupled with threats of physical violence, and the known inability of the taxi base to provide assistance by way of attendance of other taxis when requested.
It is further alleged that the taxi driver’s resulting state of panic also had a physiological effect on him that affected his ability to keep control of the steering wheel – his hands went limp.
The reasonableness of the taxi driver’s response to the behaviour of two of the three plaintiffs sitting in the back seat, both throughout the journey and shortly before the collision, is thus at the heart of this dispute.
The plaintiffs each suffered injuries to varying degrees as a result of the collision, which will be discussed in more detail below. In the case of Mr Sellick-Wilson, and subject to any findings of contributory negligence, if liability is made out, damages have been agreed at $62,500. Ms Pearse claims damages in the amount of $152,062, and Mr Cockburn initially claimed damages in the sum of $893,725.95.
For the reasons that follow, the plaintiffs have not established a breach of duty of care. I have accepted that the circumstances were such that Mr Jacobsen did not act unreasonably in the conduct which resulted in the loss of control of the taxi.
It is worth recording that considerable assistance was derived from Senior Counsel for the parties and their juniors during the hearing and in the provision of detailed written submissions. The reasons below incorporate much of those oral and written submissions, authorities and distilment of the facts.
Relevant legislation
The Civil Law (Wrongs) Act 2002 (ACT) (Act) governs the dispute, s 40 of which defines negligence as the failure to exercise reasonable care and skill.
Of particular relevance to this case, s 42 of the Act provides (with emphasis added):
Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
Section 43 of the Act refers to precautions against risk by reference to foreseeability of risk. It carries little significance in this case where the risk of a car accident and the possibility of passengers being injured if the driver failed to take reasonable care was plainly foreseeable.
Section 44 of the Act contains other principles relevant to taking precautions against risk. Of some relevance to the arguments put by the parties (discussed below) is s 44(b), which provides:
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done
As to causation, the general principles are set out in s 45 of the Act, relevantly as follows:
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation');
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability).
The plaintiffs bear the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 46 of the Act.
In the event that the defendants were to be found liable, contributory negligence has been pleaded against Mr Cockburn and Mr Sellick-Wilson.
Section 95 of the Act creates a rebuttable presumption of contributory negligence if the injured person was intoxicated at the time of the accident. The onus is on the plaintiff to establish to the civil standard that the intoxication did not contribute to the accident.
Section 102(1) of the Act provides:
Apportionment of liability—contributory negligence
(1) If a person (the claimant) suffers damage partly because of the claimant's failure to take reasonable care (contributory negligence) and partly because of someone else's wrong—
(a) a claim for the damage is not defeated because of the claimant's contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant's share in the responsibility for the damage.
The remainder of the section is immaterial to the circumstances of this case.
It is also worth recalling that s 47 of the Act provides:
Contributory negligence can defeat claim
In deciding the extent of a reduction of damages because of contributory negligence, a court may decide on a reduction of 100% if the court considers it is just and equitable to do so, with the result that the claim for damages is defeated.
As with contributory negligence, in the event that liability is established, the quantum of damages is in issue in respect of two of the three plaintiffs.
Principles applicable to reasonableness
The emphasised words of s 42 of the Act above highlight that although reasonableness is an objective test, it is to be judged from a person in the defendant’s position, and with the defendant’s information at the time of the incident.
That is critical to the determination of this case.
In Abdallah v Newton (1998) 28 MVR 364 Stein JA, with whom Meagher and Beazley JJA agreed, stated at 366 (emphasis added):
The reasonableness of a defendant's conduct must be judged according to the circumstances of the particular case. Mr Wheelahan QC, counsel for the respondent, submits that her Honour erred in holding that the conduct of his client had been unreasonable in the circumstances. He points to the findings of her Honour concerning the respondent's state of mind at the time he drove off and submits that they were the actions of a reasonably prudent person.
In Leishman v Thomas (1957) 75 WN (NSW) 173, Street CJ considered the question of whether a defendant may rely on the principle of the "agony of the moment" in answer to a claim that he had acted negligently towards another. He stated:
This so called principle of acting in the "agony of the moment" is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. 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 makes a step which wiser counsels and more careful thought would have suggested was unwise. [at 175]
I am unable to agree that the actions of the respondent, as found by her Honour, were unreasonable in the circumstances. The respondent was in a situation that was not of his making. Undoubtedly, if he had not felt threatened and if his mirror had not been smashed, he would have taken greater care in driving off. However, he was intimidated and believed the situation required immediate action. His reaction was entirely reasonable. It is true that the action which he took resulted in the collision. However, given the circumstances he faced, his actions were perfectly reasonable and accorded with the conduct of a reasonably prudent person.
Notably, the issue is not whether Mr Jacobsen could have (or should have) done something else. It is whether what he did do was unreasonable in the light of the circumstances: see Marien v Gardiner [2013] NSWCA 396 at [35] and the cases there-cited. To similar effect is the statement of Tobias AJA (with whom Bathurst CJ and Basten JA agreed) in Stuart v Walsh [2012] NSWCA 186 at [65]:
…the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself.
The evidence
The three plaintiffs and the first defendant all gave oral evidence. In addition, police statements were taken from each of the parties in the months following the accident and those statements were also before the Court, along with two investigations reports (as part of Exhibit 1 in the proceedings). The first defendant provided verified answers to interrogatories and these were in evidence (Exhibit 11).
CCTV images taken from three cameras showing different perspectives in the taxi were also admitted into evidence, with the parties agreeing the approximate locations along the route taken by the taxi depicted in each image. The agreed details of the location of each image were derived from an automatic time and date stamp as well as the GPS coordinates on each image, which the parties agreed was accurate. The CCTV recording was not continuous; rather, it recorded still images in time intervals. The intervals varied in length, but for the most part, each camera had a gap of approximately 10 seconds between the images recorded.
A number of reports from various medical practitioners were admitted. None of the medical experts were required for cross-examination. Part of the medical evidence was directed to the reasonableness of the taxi driver’s reaction and will be discussed further below. The remainder was directed to the question of damages.
The use to be made of photographic evidence
The parties urged upon the Court, and indeed it is well-accepted, that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include the CCTV footage from which photographic stills are derived), particularly in the absence of expert evidence: Short v Barrett (Unreported, New South Wales Court of Appeal, Clarke, Meagher and Handley JJA, 5 October 1990); Angel v Hawkesbury City Council [2008] NSWCA 130 at [70]-[72]; Blacktown City Council v Hocking [2008] NSWCA 144 (Blacktown) at [8]-[12] and [167]-[170]; Warren v Gittoes [2009] NSWCA 24 at [54]-[55]; Yarrabee Coal Co Pty Ltd v Lujans [2009] NSWCA 85 (Yarrabee) at [20]-[28]: cited in Asim v Penrose & Anor [2010] NSWCA 366 at [57]; see also Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 at [66].
However, there is no doubt that the photographs may at least be used as an aid to determine which of the explanations given by the various witnesses appears to be most worthy of acceptance (following Blacktown at [167] per Tobias JA), and ultimately, this is not a case where it was necessary to determine any factual issue using the photographs as the sole means for a particular finding: c.f. Blacktown at [169] per Tobias JA. It depends upon the photograph in question, the circumstances in which it was taken, and what the evidence is in relation to the photograph: Yarrabee at [28].
I have not used the time stamps on the photographs to draw any inference about the speed the taxi may have been driving at various points along the journey. I have also exercised caution in drawing any inferences as to what a person was feeling at the time from any facial expressions of the parties in the photos, notwithstanding that there was some cross-examination about that during the hearing.
However, the photos do provide a telling account of the journey in question and where they present a record of the positions of the passengers vis-à-vis the driver, and the body language of the passengers at various points on the journey, I have taken that into account as direct evidence of the surrounding circumstances.
Oral evidence
It is appropriate to record some observations about the evidence given by the parties in these proceedings. Each witness remembered different parts of the sequence and content of the events that occurred during the journey, as is to be expected given the passage of time, the different states of sobriety on the night in question, the different personalities, and the different levels of preparation by each before giving evidence.
Ms Pearse appeared to have the most accurate recollection of what occurred during the journey and she did her best to provide truthful answers to the Court, notwithstanding that it was clear from her answers that she was attempting to mitigate and explain the conduct of the other two plaintiffs, derived through her personal knowledge of each of them.
However, the fact that Ms Pearse had a better recollection does not mean that she remembered or was able to observe everything that occurred during the taxi ride. The photographic evidence, and in certain respects Ms Pearse’s own evidence, was that there were points along the journey when she was distracted. For example, the CCTV stills and the oral evidence was that she sent at least one text message on her phone to her brother at the Australian Defence Force Academy (ADFA) and tried to call him.
A second example is Ms Pearse’s interactions with Mr Sellick-Wilson, with whom she was romantically involved at the time. Her own evidence in cross-examination was that she was cuddling up with Mr Sellick-Wilson and kissing him at certain points along the journey and could have missed what was being said by Mr Cockburn, and this is consistent with what was recorded on the CCTV stills.
A third example is that Ms Pearse was sitting to the left of Mr Cockburn (facing the front of the taxi) and became upset later in the journey. As a result she did not always have a clear view of Mr Cockburn’s conduct during the journey, or may not have been focussing on what he was doing.
Mr Cockburn and Mr Sellick-Wilson had, on any view, each consumed more alcohol than Ms Pearse during the Saturday night before the accident the following Sunday morning, although the tally of alcoholic drinks consumed that night remained in dispute. Many years have also passed between the accident and the date of hearing. As a consequence, their recollections were not as clear as that of Ms Pearse, but to the extent that they did remember events that night, I found each to be generally credible.
I turn then to the oral evidence given by Mr Jacobsen, the taxi driver, over the two days that he was examined and cross-examined. What I would describe as a softer personality was revealed over that length of time in the witness box, although it is difficult to convey in writing the tone of voice, the presentation and the mannerisms the create the basis for that impression. The transcript simply will not do justice to this aspect of the evidence, as it does not record Mr Jacobsen’s body language, the considered pauses before answering questions, or the retelling of the words used by different plaintiffs during the journey (Mr Cockburn in particular) using a different voice, tone and volume from his own. It appeared to me, as I discussed with Senior Counsel during their closing submissions, that Mr Jacobsen was at times reliving the experience in the witness box. I found him also to be a generally credible witness.
Once again however, that does not mean that he was a reliable witness. Mr Jacobsen’s oral evidence was that he had expressly decided not to attempt to refresh his memory, either by reviewing his statement to police or reviewing the CCTV still footage, partly because the experience had been traumatic for him and partly because he did not want to taint his memory when he gave evidence in court.
Mr Jacobsen is not to be criticised for that choice, which has some logic to it: the CCTV footage in particular shows images of the passengers that he would not have seen as a driver, and so could well have tainted his true recollection if he reviewed them prior to giving evidence. The difficulty is that, no doubt also because of the passage of time and perhaps his highly emotional state by the end of the journey, the taxi driver’s evidence as recollected in the witness box was at times inconsistent with the recollections of all three plaintiffs, the CCTV footage, his own statement to police as to what occurred (which was made shortly after the accident occurred), and the interrogatories to which he gave verified answers. It thus appeared that despite Mr Jacobsen’s efforts, his memory had been affected and that his evidence was, to some extent, reconstruction as opposed to recollection. Further, the reconstructed memories were so powerful that Mr Jacobsen appeared to have convinced himself of that reality, and was at least on one occasion (under cross-examination as to Mr Sellick-Wilson’s conduct) reluctant to accept that a different state of affairs may have existed from that which he purported to remember.
Accordingly, there is no one witness whose evidence I generally preferred or that I consider was able to provide a consistently reliable account of all the material facts. The following is what I consider happened over the journey, on the balance of probabilities. Such findings are the most consistent thread to be drawn from the various accounts, including those given by the parties to the police at the time of the accident, the oral evidence of the three plaintiffs and from Mr Jacobsen during the hearing, the verified answers to interrogatories provided by Mr Jacobsen, and the CCTV stills.
Findings of fact
As the surrounding circumstances are part of the information known to the first defendant at the time of the incident, it is appropriate to make factual findings in relation to the entire journey.
The plaintiffs enter the taxi
At 12:51 am on Sunday 6 November 2011, the first defendant’s taxi was waiting outside the Capital Men’s Club in Gladstone St, Fyshwick.
Mr Jacobsen observed Ms Pearse and Mr Cockburn approaching the taxi. Ms Pearse appeared to be assisting Mr Cockburn to walk as they came towards the taxi. Mr Jacobsen inferred from that observation that Mr Cockburn was very drunk.
Ms Pearse and Mr Cockburn entered the taxi of the first defendant and indicated that they wished to go to the suburb of Forde.
Mr Sellick-Wilson arrived shortly thereafter. As he got into the taxi, Mr Sellick-Wilson said that he was busting for a piss and was going to piss all over the place. The first defendant heard this and observed Mr Sellick-Wilson then leave the taxi, move to behind the taxi and stand to the rear left side of it for about a minute, before then getting back into the taxi.
As accepted by Mr Sellick-Wilson, the fact that Mr Sellick-Wilson was prepared to urinate in a public place was a product of his intoxication. He would not normally behave in that way.
Mr Jacobsen also observed each of the male plaintiffs when they were entering the taxi to be of medium athletic build.
Mr Jacobsen starts driving the taxi
Shortly after Mr Jacobsen started driving the taxi, Mr Cockburn instructed Mr Jacobsen to drive to McDonald’s at Fyshwick.
Mr Jacobsen refused. He said that they were not allowed to eat food in the taxi. However, he would take them to McDonald’s in Gungahlin (a location closer to Forde) so that it would be fresh for them to eat when they got home. Although neither Ms Pearse nor Mr Cockburn recalled this, Mr Sellick-Wilson remembered that exchange in oral evidence and it is consistent with Mr Jacobsen’s evidence, both in the witness box and at the time he made his statement to police.
The plaintiffs were not happy with that outcome, and Mr Cockburn in particular made it known to the driver. One version of how that was communicated, given by Mr Jacobsen, was that Mr Cockburn said: “Fucking taxi drivers. They should take us where we want.”
Mr Cockburn recalled saying: “Aren’t you a taxi driver and you’re supposed to take us where we want to go?” He recalled being quite upset with that and said: “Well, that’s pretty fucked” or words to that effect.
The precise words of this exchange do not matter. It is sufficient to find that there was a man affected by alcohol, sitting behind the taxi driver, swearing that the driver would not take him to McDonald’s.
In this regard, Ms Pearse thought the words used by Mr Cockburn (whatever they were) were said in good humour or that Mr Cockburn was being ‘cheeky’. It may have been Ms Pearse’s perception that Mr Cockburn’s language was not meant to be aggressive or that it was Mr Cockburn’s nature to swear frequently, but that derives in part from her own previous friendship with Mr Cockburn. The taxi driver did not know Mr Cockburn.
The same may be said of another exchange between Mr Cockburn and Mr Jacobsen shortly thereafter, as the taxi proceeded along Newcastle Street in Fyshwick. Mr Cockburn said: “It’s good to see an Australian taxi driver.”
Mr Jacobsen replied, saying: “yeah, we can be mates”. However, Mr Cockburn then said: “Nah, you’re not my fucking mate. Mates would take you to McDonald’s.”
Again, Ms Pearse’s evidence to the police on 1 December 2011 was that in the time since she had known Mr Cockburn, she had come to realise that he has a ‘joking around’ type of personality. When she heard Mr Cockburn say these comments, she did not believe he was trying to be rude, but she thought the taxi driver may have taken the comments the wrong way.
Ms Pearse’s belief in that regard was correct. The taxi driver’s evidence was that those comments did make him feel anxious and worried about his safety.
Around the same time in the journey, and particularly when the taxi was travelling on the Monaro Highway, Mr Sellick-Wilson stated that he needed to urinate again. There was some discussion between the passengers, with either or both of Mr Sellick-Wilson and Mr Cockburn suggesting several times that Mr Sellick-Wilson should just urinate in the cab.
Mr Jacobsen spoke up after hearing this exchange, saying: “you can’t do that in the cab.”
There is some evidence from Mr Jacobsen that at this point, either Mr Cockburn or Mr Sellick-Wilson stated: “If we want to piss, we’ll piss. If we want Maccas, we’ll eat Maccas. You can fucking do what we say, or you’ll learn the fucking hard way.”
Ms Pearse’s recollection was not as precise. She remembers exchanges between Mr Cockburn and Mr Jacobsen, which became heated and argumentative.
Mr Jacobsen also thought that during this stage of the journey, Mr Sellick-Wilson got to the point of feigning to undo his jeans, or actually preparing to urinate in the taxi. I do not accept that evidence. However, it is not necessary to resolve precisely what was said or done during that part of the journey. I accept that there was tension in the car to the point where Mr Jacobsen felt extremely uncomfortable and vulnerable in the car. To my mind, whether that feeling was brought about by fear or disgust is of no moment. I accept he was starting to panic in the sense of feeling threatened and anxious, consistent with what he told police and his evidence in the witness box.
There was some evidence of Mr Jacobsen’s own observation of his physical state at that point. He reported to the accident investigator on 7 March 2012 that his hands had started to shake, and to Dr Saboisky on 3 March 2015 that he was shaking. I accept that Mr Jacobsen’s hands were shaking. However, even without that finding, the stress and vulnerability felt by Mr Jacobsen is obvious from what happened next.
The plaintiffs are requested to leave the taxi
The taxi approached the T-intersection at Morshead Drive and Fairbairn Avenue. Mr Jacobsen stopped the taxi in the kerbside lane of the intersection near the traffic lights. He put the hazard lights on. Notwithstanding Mr Jacobsen’s indication in the witness box of a different intersection where he thought he stopped, I find that the location was the intersection at Morshead Drive and Fairbairn Avenue. That is consistent with Mr Jacobsen’s earlier statement to police, the agreed location taken from the coordinates of the CCTV stills and the evidence of the plaintiffs that it was the intersection where Mr Jacobsen stopped.
After Mr Jacobsen had stopped, he said to the passengers: “I can’t go on any more. I can’t continue taking you on this road. I’m happy to call you another cab but you have to get out.”
It is generally agreed on the numerous different accounts that three things then happened. First, the plaintiffs refused to leave the taxi. Second, Mr Jacobsen used his radio to request another taxi to come and collect the plaintiffs but was told no taxi was available to come. Third, the taxi driver and the plaintiffs sat stationary in the taxi for or so five minutes with Mr Jacobsen refusing to drive and the plaintiffs refusing to leave the taxi.
On no view can that have been a relaxed atmosphere.
While the taxi was stopped, Mr Jacobsen told the plaintiffs that he had called another cab and was happy to wait until that cab got there. In the meantime, Messrs Cockburn and Sellick-Wilson each made statements to the following effect: “Look, we’re fucking paying you. Now you’ll go where we tell you to go.”
Mr Cockburn said in oral evidence that he told Mr Jacobsen to “start fucking driving”. There were a number of other words said, the effect of which was that the plaintiffs wanted Mr Jacobsen to continue the journey and refused to leave the cab.
I do not accept Ms Pearse’s evidence that any of those words were said with a smile on the face of either Mr Cockburn or Mr Sellick-Wilson, or that the facial expressions of either passenger in any way mitigated the contents of what was being said to Mr Jacobsen. It seems implausible to me that someone would be communicating in such language to the taxi-driver and yet be smiling at the same time. It is also inconsistent with Ms Pearse’s earlier oral evidence that the male plaintiffs were annoyed when they said statements to that effect and the CCTV footage, although not a continuous record, does not support Ms Pearse’s description.
However, whatever expressions were on the faces of the two male plaintiffs is immaterial at this point. There was insufficient evidence to establish that Mr Jacobsen, sitting in the driver’s seat, looked at either Mr Cockburn or Mr Sellick-Wilson each time they were speaking. At most, the CCTV stills at that point in the journey show Mr Jacobsen periodically speaking to the passengers while looking into the rear-view vision mirror. The critical information here was the continued refusal by the passengers to leave the taxi in circumstances where the driver had expressly communicated his discomfort in continuing to drive them.
Mr Jacobsen recommences driving
The accounts then differ as to how it came about that Mr Jacobsen commenced driving the taxi again. Ms Pearse gave evidence that while the taxi was stopped, she asked the taxi driver to drop them at the next roundabout so that her brother, who resided at the ADFA base nearby, could come and collect them.
Mr Jacobsen’s evidence to the police was that he heard Ms Pearse tell Mr Cockburn and Mr Sellick-Wilson that it was a good idea to get out and she would call her brother who would come and get them. He had planned to allow them to wait in the taxi until Ms Pearse’s brother arrived.
He then heard Mr Cockburn say: “If you don’t start driving us home by the time I count to ten, I’m going to smash your fucking head in.”
Mr Jacobsen felt he was in immediate danger of being seriously injured and thought that if he drove towards the roundabout at the intersection of Fairbairn Avenue and Northcott Drive, which he estimated to be approximately 800 metres away, there would be other taxis in the area near the taxi drop off point near the intersection.
In the witness box, Mr Jacobsen initially said that he communicated to the plaintiffs he would drive to the city, but that his actual intention was to get to ADFA because it was the nearest populated area by which other taxis or members of the public would be present to offer assistance. His evidence under cross-examination was somewhat confused, but ultimately appeared to be that the negotiations as to the precise destination did not resolve before he started driving again.
The recollections of Mr Cockburn and Mr Sellick-Wilson differ again, in that they both thought they had requested Mr Jacobsen to take them to the service-station at the airport and that Mr Jacobsen had agreed to do so.
None of the three plaintiffs recall a threat of violence being spoken by Mr Cockburn in the words recalled by Mr Jacobsen above.
I have reconciled each of these versions at this point in the journey as follows.
Mr Cockburn did request to be taken to the service-station near the airport, which was where they could get McDonald’s and arrange alternative transportation. Mr Sellick-Wilson heard that request and agreed with it. When the taxi commenced moving again, each anticipated that was the destination.
Ms Pearse also requested that the taxi driver take them to the next roundabout (which is in the opposite direction from the airport) and when the taxi commenced moving again, she thought that the taxi driver had agreed to her request.
Mr Jacobsen formed an intention of driving again to break the impasse, but he only intended to travel as far as necessary to find assistance, which he hoped would be at or near ADFA. That appears to be consistent with what he told police nine days after the accident occurred, and also coincides with what Ms Pearse had requested he do.
However, Mr Jacobsen did not clearly communicate any intention to the plaintiffs when he started driving again. I do not accept that he said he would take the plaintiffs to the city. No passenger wanted to go to the city and it is inconsistent with Mr Jacobsen’s more contemporaneous recollection as told to police. If he had communicated an intention to take the passengers to the city, it is likely that there would have been significant complaint from any or all of the plaintiffs, and I consider that Ms Pearse at least would have remembered any discussion to that effect. Further, Mr Jacobsen’s evidence in the witness box was that later in the journey, when he was driving along Fairbairn Avenue, Mr Cockburn said to him, “I told you to fucking stop, mate. Where are you taking us? Where are you going?”
Mr Cockburn’s evidence in the witness box was also that after Mr Jacobsen recommenced driving and turned left, he said words to the effect of “Where the fuck are you going?”
Those recollections are each consistent firstly with the car not going in the direction Mr Cockburn had anticipated (namely, towards McDonald’s at the service-station near the airport) and secondly with Mr Jacobsen not clearly communicating a destination, but simply commencing to drive again.
The taxi turned left and Mr Jacobsen started driving towards the roundabout at the intersection of Fairbairn Avenue and Northcott Drive. Whatever the intended destination, when Mr Jacobsen recommenced driving, I find that he was genuinely concerned for his safety and extremely wary of the passengers who had refused to comply with his request to leave the taxi.
It is unnecessary to find whether Mr Jacobsen’s anxious state arose because of a communicated threat of physical violence, either at all, or in the words recalled by Mr Jacobsen, for three reasons.
First, the defiant behaviour of the passengers over the five minutes alone whilst the taxi was stationary was sufficient cause for a reasonable person to have at least a concern, a degree of uncertainty or even be fearful as to how the plaintiffs might behave once the journey continued.
Secondly, when Mr Jacobsen recommenced driving, he was in control of the taxi and remained so for it seems at least approximately 500 metres following the left-hand turn. As discussed below, the male plaintiffs became extremely aggressive at a later point, after the taxi commenced moving again. That is the conduct that carries materiality for the purposes of assessing the reasonableness of the Mr Jacobsen’s response in considering whether a duty of care was breached which caused the loss of control of the taxi.
Thirdly, the Court is not considering whether there were different choices that could have been made by Mr Jacobsen or the plaintiffs earlier on in the journey, which would have either diffused the situation or stopped the journey entirely and thus avoided the accident that occurred later on. The issue is whether the response of the driver of the car, at the time that immediate action was required (and not minutes earlier), was reasonable in the circumstances which the driver faced.
The plaintiffs decide that they want to leave the taxi
A couple of hundred metres along Fairbairn Drive there was a catalyst for a change in attitude by the plaintiffs, whereby the plaintiffs moved from a position of a point-blank refusal to leave the taxi when it was stopped, to a desire within the space of a minute that the taxi stop immediately, so that they could get out.
Again, the reasons given for that change in attitude differ. Ms Pearse’s evidence, both to police and consistently in the witness box, was that it was she who first asked the driver to stop the taxi, and she did so after a call the driver made on his radio for assistance. She heard Mr Jacobsen say “I need back-up” quite sternly.
Mr Cockburn’s recollection to police was that when those words were said, Mr Jacobsen sounded a bit frantic and strange. Mr Cockburn also recalled Mr Jacobsen saying he had had an accident. It is more likely that Mr Jacobsen said he was worried he was going to have an accident, but in my view, it does not matter whether those additional words were spoken.
Ms Pearse’s police statement then records the following:
After I heard this I started freaking out and began having a panic attack. I asked the taxi driver to stop to let us out as I felt like the matter was getting way out of hand for what was a verbal argument. I also started screaming because I wanted to get out of the taxi. I then heard [Mr Cockburn and Mr Sellick-Wilson] start yelling at the taxi driver to stop to let us all out.
I then noticed the taxi driver began driving like he wasn’t paying attention. He was swerving all over the road.
Ms Pearse in cross-examination accepted that she knew that if back-up came either in the form of other taxis or police, there was going to be trouble for the boys in the back of the taxi and that she asked the taxi-driver to stop because she felt he overreacted and she felt the situation was well out of hand given they had just agreed to being dropped off at the roundabout ahead.
I find that the radio call was the catalyst for Ms Pearse wanting to get out of the taxi for the reason she gave in cross-examination. It was the same reason she gave to the police. She was not as intoxicated as the male plaintiffs and thus potentially had a clearer recollection, but more importantly, she was the best person to know what was in her own mind and her evidence on that point was plausible.
All three plaintiffs and Mr Jacobsen gave evidence that along Fairbairn Avenue Ms Pearse became very upset in the taxi and started to cry. Ms Pearse’s oral evidence was that as soon as she started to say stop and to scream, “Please stop the fucking car. Please stop, stop, stop”, both Mr Sellick-Wilson and Mr Cockburn then joined in her request. I also accept that evidence as being credible.
It is likely that Mr Cockburn and Mr Sellick-Wilson also had their own reasons for wanting to leave the taxi. The taxi driver was not taking them where they wanted to go and they did not like the way he was driving. Mr Cockburn’s and Mr Sellick-Wilson’s combined accounts are that they observed the taxi driver to be driving erratically, to be increasing in speed, to be swerving and that they no longer felt safe in the taxi.
However, the plaintiffs’ reasons for changing their course is again immaterial – they did not communicate to Mr Jacobsen why they wanted to get out of the car. All that the taxi driver knew was that that all three plaintiffs wanted the taxi to stop. They reached a point where they were yelling and screaming at the taxi driver words to the effect of “stop the fucking car right now”. Those words accord with Mr Jacobsen’s recollection, provided during the record of interview for the purposes of the accident investigation.
The CCTV stills are consistent with that evidence. They show a visibly upset Ms Pearse (even exercising caution in relation to facial expressions derived from photographic evidence referred to above) along this stretch of the journey and all three plaintiffs leaning forward apparently remonstrating with Mr Jacobsen, who at times was looking over his shoulder towards the passengers and not facing the road.
I accept that Mr Jacobsen may not have been the model of perfection in his driving, around the time that Ms Pearse requested to stop the taxi along Fairbairn Avenue. First, he was already anxious. Second, his hands were shaking. Third, he knew that no assistance was coming from any other taxi, despite his earlier request and his waiting for a number of minutes. That knowledge would not have assisted in him being able to concentrate properly (noting that his inability to concentrate was one of the reasons he gave police for stopping in the first place). Fourth, he was using his radio again, seeking assistance, which would have meant that he did not have both hands on the wheel for a short period of time and may have looked at the radio while operating it (as Ms Pearse observed). Fifth, he may have been travelling slightly faster than he realised. It is entirely plausible that all of that was reflected to some extent in the driving of the car.
However, Mr Jacobsen denied that he was driving quickly and swerving for most of the length of Fairbairn Avenue. I accept that evidence and find that Mr Jacobsen was in control of the taxi at that point. Ms Pearse’s evidence was that she was “okay until there was either a call-in or a call-out” (on the radio). She did complain that he was distracted when he used the radio, looking at the radio rather than the road. The CCTV stills are consistent with Mr Jacobsen still being in control of the taxi at that point along Fairbairn Avenue.
Ms Pearse’s evidence was that shortly thereafter, the motion of the car caused her body to move from left to right. I accept that there may have been a degree of movement due to the use of the radio and then a correction, which was felt by Ms Pearse. What I do not accept is that the taxi was swerving onto the wrong side of the road, either before or at the point when Ms Pearse first requested to be let out of the car. Ms Pearse’s recollection to the police was that Mr Jacobsen was swerving on the left hand side of the road, and at times the taxi travelled onto the gravel and struck tree branches. However, she only observed that state of driving after the male plaintiffs had commenced yelling at the taxi driver to stop and let them all out, and on her account to police, after Mr Jacobsen had turned onto Northcott Drive.
It is uncontroversial that Mr Jacobsen did not stop the vehicle on Fairbairn Avenue when requested to do so. Unfortunately for all parties, it is clear that there was a complete breakdown in communication between driver and passengers. Mr Jacobsen interpreted the request to stop as a direct threat to his safety. He thought if he stopped on that stretch of road, which was dark and isolated, it was likely that he would be physically assaulted by the male plaintiffs. He was trying to get to the roundabout, which he knew was up ahead and better lit, with potentially people about which he thought would result in a safer outcome for him.
The plaintiffs on the other hand did not appreciate at the time the fear that the conduct of Mr Cockburn and Mr Sellick-Wilson had induced in the driver. That lack of appreciation caused at least Mr Cockburn and Mr Sellick-Wilson to be angry that Mr Jacobsen did not stop when requested, and their level of aggression towards the driver increased as a consequence.
Ms Pearse’s statement to police displays some insight and it is consistent with Mr Jacobsen’s evidence. She said:
In the days after this incident, I started thinking the taxi driver didn’t pull over because he was scared. I came to this conclusion because when he called for back up I thought he must have felt like he had lost control of the situation.
Regrettably, such hindsight cannot change the situation that the parties then faced.
A sudden crisis or emergency
Along Fairbairn Avenue, Mr Cockburn suddenly and unexpectedly grabbed Mr Jacobsen’s seatbelt from behind. There is no doubt this happened. Neither Ms Pearse nor Mr Sellick-Wilson were able to observe that from where they were seated, and Mr Cockburn may not have remembered until the CCTV stills were shown to him (certainly he did not disclose this to police). However the CCTV stills clearly show the event and it was accepted by both Mr Jacobsen and Mr Cockburn as reflecting Mr Cockburn’s conduct. It was put to Mr Cockburn that such conduct was deliberate and I accept that it was.
Mr Cockburn forcefully pulled the seatbelt so tight that it trapped Mr Jacobsen or pinned him against the seat (as variously described to police and in the witness box), and pulled his body back from above his right shoulder. He described this in an interview given to the second defendant’s accident investigator on 7 March 2012 as a feeling of being choked, although such language is not to be understood as a finding that Mr Jacobsen was deprived of oxygen. Importantly however, this conduct:
(a)Interfered with his ability to hold the steering wheel; and
(b)Constituted a physical attack on the driver, and was so understood by Mr Jacobsen.
This act most likely occurred about 550-650 metres from the roundabout leading to Northcott Drive and lasted for approximately 30-35 seconds. Such conclusion has been inferred from a combination of the evidence. The distance between the intersection where Mr Jacobsen had stopped the taxi and the roundabout facilitating the turn into Northcott Drive was approximately 1.7 kilometres (by reference to the maps in evidence).
Mr Cockburn grabbed the seatbelt sometime after Ms Pearse first requested to stop the taxi, and on her evidence she did not make that request until just before the taxi reached the cross street of Addison Road, which places the taxi in the last kilometre leading up to the roundabout.
The video stills show (consistent with Mr Jacobsen’s initial recollection and Ms Pearse’s oral evidence that nothing happened when she first made the request) that Mr Cockburn did not immediately grab the seatbelt. At the other end, approximately 30 seconds passed (again by reference to the agreed time stamps and images on the CCTV stills) while Mr Cockburn held the seatbelt, before letting go either when the taxi entered the roundabout, or moments before. These events all place some parameters around the location and duration of Mr Cockburn’s conduct.
Having found that Mr Jacobsen’s driving was not the initial catalyst for Ms Pearse’s request to stop the taxi, and noting that the accident did not occur on Fairbairn Avenue, it is not necessary to make any finding about any speed that Mr Jacobsen was travelling along that stretch of road.
In Mr Jacobsen’s statement to police, he recalled Mr Cockburn saying when he grabbed the seatbelt something like, “Let us out. Do what I fucking say.”
It is plain, however, that Mr Cockburn’s conduct produced the exact opposite effect from what he desired.
Mr Jacobsen’s evidence in the witness box as to what happened next was as follows:
I began to lose control of the vehicle. … I felt like I entered a severe state of panic, I couldn’t move my body because of the seatbelt constricting me. I felt now that there was no escape from physical assault from the male customers. I experienced a sense of panic I’ve never felt. I seemed to go into a dream state.
…I felt less connected to the operation of the vehicle, my hands had come away from the wheel or loosened the grip. … I was still sitting in the seat as a taxi driver but I was completely distracted by the seatbelt and a sense of impending violence. …
I accept that evidence. I accept that the behaviour of Mr Cockburn induced panic in the driver. Mr Jacobsen attempted to apply the brakes at some point but he was disorientated or his feet had moved and he accidentally hit the accelerator. He then did not trust where his feet were in the car and refrained from using any pedals.
As Mr Jacobsen started to lose control leading up to the roundabout, it is most likely that the loss of control was accompanied by vehicle starting to swerve on the road.
About 50 to 100 metres from the roundabout leading to Northcott Drive, and from his forward position directly behind the driver, Mr Cockburn let go of the seatbelt and grabbed Mr Jacobsen by the shoulders with both hands.
Mr Jacobsen told police on 15 November 2011 that he had been grabbed from behind, and Mr Cockburn and Ms Pearse each gave evidence to that effect. To the extent Mr Cockburn gave an inconsistent account in the witness box with that in his statement to police, I have preferred the more contemporaneous account.
The CCTV stills do not show Mr Cockburn with his hands physically on Mr Jacobsen’s shoulders or shirt, but there is a ten second gap between the images at that point. The next image after the taxi turned left at the roundabout shows Mr Cockburn’s hands in close proximity to Mr Jacobsen’s shoulders, on the back of the driver’s seat and on the driver’s headrest, within easy reach of Mr Jacobson. I therefore accept that Mr Cockburn briefly held Mr Jacobsen with both hands.
Mr Jacobsen managed to manoeuvre the taxi through the roundabout, turning left into Northcott Drive. However, that does not mean that he was in complete control of the vehicle. To the contrary, Mr Cockburn remembers being thrown around in the taxi as it navigated the roundabout.
At this point, Mr Cockburn punched or hit the driver’s headrest twice. Mr Jacobsen recalls feeling the force of the headrest being punched, which hit the back of his head. I accept that occurred.
Mr Jacobsen’s evidence was that by this stage of the journey he was in shock and the medical evidence (discussed below) is that he was in the throes of a panic attack, brought on by Mr Cockburn’s conduct.
Ms Pearse’s description to police was that she remembered the taxi was travelling at about sixty kilometres an hour along Northcott Drive, but that the taxi was not gaining or losing speed. She remembered not feeling like the brakes had been used and that everyone in the taxi was screaming because it felt like the taxi was out of control. Mr Cockburn also reported to police that Mr Jacobsen did not brake at all. That is consistent with Mr Jacobsen not controlling the pedals.
The plaintiffs recall the taxi veering off the road onto gravel instead of bitumen, and going over tree branches. That quite possibly happened along Northcott Drive, having reviewed the photos in evidence, which show the gravel. It is the most likely point where the combination of fallen tree branches and gravel would have been present.
The complete loss of control of the taxi is evident at the point the taxi hit three raised concrete traffic islands in succession, which, by reference to the road map, was the entrance via Tobruk Road to the ADFA base. The first was triangular shaped and created a slip lane for cars to turn left into Tobruk Road. The second was more in the nature of a median strip dividing the traffic and the third island was also triangular shaped to facilitate traffic leaving the ADFA base and turning left onto Northcott Drive.
Ms Pearse gave oral evidence that at the point where the taxi crossed the three traffic islands, she observed Mr Jacobsen did not have a sturdy grip on the wheel. His hands were on the steering wheel but the steering wheel was moving to the left and the right in short jerky movements. Again, that is consistent with Mr Jacobsen not being able to control the wheel set out above – that his hands had come away or loosened their grip.
Impact with the light pole
There is no doubt that the taxi then travelled approximately 130 metres before hitting a light pole, and that brought the journey to an end. Mr Jacobsen told police that he tried to turn the steering wheel so that the taxi did not hit the pole, but it did not feel like the steering was working properly.
Ms Pearse felt her body lurch forward with the impact of the pole. Mr Cockburn was confused and experienced pain in his lower back on the left side. Both were able to get out of the taxi. Ms Pearse experienced right hip and groin pain, and neck pain.
Mr Sellick-Wilson received a gash to his head. He recalled ‘coming to’ in the taxi at a point where everyone else was outside the taxi. He was eventually able to get out as well.
Mr Jacobsen, still terrified, had immediately got out of the taxi and run into the ADFA base, hiding under a stairwell for some hours. He believed that the two male plaintiffs may pursue him. He had dropped his phone but eventually he called out to security guards or they discovered him, and they walked him back to the location of the taxi, where police officers had arrived on the scene.
In the interim, at least three taxis had arrived, as well as an ambulance called by one of the plaintiffs. By the time Mr Jacobsen returned to the taxi at the scene of the accident, the plaintiffs had been taken to hospital.
Psychiatric evidence
Dr Saboisky, consultant psychiatrist, provided two reports dated 12 March 2015 and 3 November 2015 in relation to Mr Jacobsen’s state of mind at the time of the incident. He was not cross-examined. Extracts of Dr Saboisky’s reports included the following:
On the balance of probabilities I believe [Mr Jacobsen’s] state of mental perturbation led to such intense anxiety and fear that he was in the throes of a panic attack just prior to the subject accident.
…
I am of the view that a person of normal fortitude would have experienced the same symptoms of severe anxiety had they been placed in his position.
…
I believe it is more probable than not that a person of normal fortitude fearing for his life would have panicked, which in turn would have had a significant impact on his or her ability to properly navigate a motor vehicle.
…
[Mr Jacobsen’s] state of a panic attack directly induced by the fear that he would be killed did impact on his ability to concentrate on the road and to safely manoeuvre the car.
I accept Doctor Saboisky’s opinion as to Mr Jacobsen suffering a panic attack, which impacted upon his ability to safely manoeuvre the car.
No breach of duty
The question is whether the response of Mr Jacobsen, with the information known to him as found, was reasonable.
That is a very different question to whether another reasonable person would have decided to let the passengers out of the taxi at an earlier point in time, so as to avoid altogether being in a position where Mr Cockburn took it upon himself to physically interfere with the driver’s restraint and the driver himself, with a view to forcing the taxi driver to stop.
Mr Jacobsen’s seatbelt restraint was grabbed suddenly, unexpectedly, and forcefully. It was pulled tight across his or her chest for some time. At the time that act occurred, the evidence established that Mr Jacobsen’s state of knowledge was as follows:
(a)Mr Jacobsen knew that the person who was doing that was a man, previously a stranger to him, of medium athletic build. That might be contrasted, for example, with a young teenager misbehaving, or an elderly woman.
(b)He knew the man had consumed alcohol.
(c)He knew that he had already come into conflict with the man twice; firstly over Mr Jacobsen’s refusal to take him to his chosen McDonald’s restaurant, and secondly his unwavering refusal to leave the taxi when Mr Jacobsen requested he do so.
(d)He knew from the fact that the man had been swearing throughout the journey and the effect of his communications in relation to those two conflicts that the man was, at the very least, unhappy with Mr Jacobsen’s decisions.
(e)Finally, Mr Jacobsen knew that the person who was holding his own seatbelt tight across the chest was now very angry. He was the same person who for the most recent stretch of the journey had been shouting and swearing at him to “stop the fucking car”.
In those circumstances, the duty of care was such as to bring about a radical reduction in its normal content: c.f. Cusack v Stayt [2000] NSWCA 244; 31 MVR 517 at [29]. It was not unreasonable that Mr Jacobsen panicked in those circumstances and, rather than stop the taxi, continued to attempt to drive the vehicle to what he thought might have been safety around the corner, or simply to prevent the passengers having better access to harm him once the taxi had stopped.
Nor is it unreasonable that Mr Jacobsen was ultimately not able to maintain control over the moving vehicle due to the onset of a panic attack, a physiological response that was not a matter within his control, particularly when combined with Mr Cockburn grabbing him and punching or hitting the driver’s head rest. However, even if he had not had the panic attack, it would not have been unreasonable to fail to maintain control of a car with those repeated acts of interference.
In those very particular circumstances, it is thus not necessary to have regard to the medical evidence before making a finding that Mr Jacobsen’s response fell within the range of a reasonably prudent driver. However, the conclusion that I have reached is fortified by Dr Saboisky’s evidence that a person of reasonable fortitude may have suffered a panic attack in the same circumstances.
The sudden and unexpected physical interference, contact and assault delivered by Mr Cockburn, commencing with the pulling on Mr Jacobsen’s seatbelt, continuing with the holding of Mr Jacobsen and concluding with a blow to Mr Jacobsen’s head through the headrest of the driver’s seat, is in every sense a circumstance where the driver was forced to act ‘in the agony of the moment’. I do not consider that what Mr Jacobsen did in those circumstances was in any way an unreasonable response. Accordingly, there was no breach of duty of care.
Contributory negligence
Had I found that there had been a breach of duty of care, it would have been necessary to give consideration to the question of contributory negligence, which was pleaded against the plaintiffs.
However, the claim for contributory negligence in respect of Ms Pearse was based on a failure to properly wear her seatbelt and such claim was withdrawn at the hearing.
The claims for contributory negligence against Mr Cockburn and Mr Sellick-Wilson are identical. They allege verbal abuse, physical interference and threats of physical violence as Mr Jacobsen was driving or otherwise attempting to control the vehicle.
Having regard to the words of s 102 of the Act set out above, and in particular the phrase ‘partly because of the claimant’s failure to take reasonable care’ it is necessary to establish that the plaintiffs’ failure to take reasonable care is causally linked to the suffering of damage: see Hendricks v El Dik (No 4) [2016] ACTSC 160 at [158].
The defendants bear the onus of establishing the causal connection: Hannan v MacLean (1989) 9 MVR 219 at 226; Aitkenhead v Kaufline (No 3) [2014] ACTSC 83; 66 MVR 479 at [25]-[30].
The test is objective: Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 at [80]. It is in substance the same test that existed at common law, and involves both the culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 494; cited by Mossop AsJ (as his Honour then was) in Hendricks at [159].
On the question of contributory negligence, and on the findings I have already made, the thumping of the back of the headrest of the driver’s seat, yelling at the driver and physical interference with the safety restraint across the driver’s chest was causally connected to Mr Jacobsen losing control of the vehicle. I would have found it just and equitable that Mr Cockburn share responsibility for the accident.
However, given my findings as to the legal consequences of the facts as found, any assessment of the percentage of responsibility in respect of Mr Cockburn would be necessarily artificial here. The findings of fact have been set out in detail with a view to assisting determination of the appropriate percentage, should it become necessary to do so.
With regard to Mr Sellick-Wilson, although the particulars pleaded are supported by the findings of fact above, it was not the yelling and threats or other behaviour of Mr Sellick-Wilson that ultimately induced the panic attack or otherwise caused the loss of control. The relative importance of Mr Sellick-Wilson’s contribution was so low that I would not have considered it just and equitable to reduce any damages payable in respect of his claim.
Damages
The following reasons on damages are given for completeness, albeit in somewhat shorter form, given that the findings as to liability above dispose of the proceedings.
Ms Pearse
Ms Pearse was fit and well before the accident. Following the accident Ms Pearse reported whiplash and soft tissue injuries, with neck pain, pain in her right hip near her groin, pain in her upper back and pain in her right knee.
She also felt very distressed and anxious, taking three days off her casual employment at Woolworths, where she had been working throughout her psychology degree.
During the first half of 2012, Ms Pearse claims to have experienced poor sleep and a lack of an ability to concentrate, which she attributes to the accident, resulting in her deferring the completion of a subject at university relating to statistics, two weeks after commencing it.
However, she did manage to complete the remaining subjects she was taking that year, cognitive psychology and psychopathology, and the final statistics subject was completed in 2013.
Over the years following the accident, Ms Pearse suffered frequent headaches, and continuing pain in her upper back, neck, hip and knee, which she managed through taking Panadol. Ms Pearse had nightmares and was anxious catching taxis.
The injuries or disabilities did not prevent Ms Pearse from gaining qualifications as a personal trainer in 2013 and from taking on two clients at the gym, nor did it prevent her from increasing her hours at Woolworths throughout 2013.
Having reviewed the medical legal reports in evidence, the dispute is primarily between the extent and duration of Ms Pearse’s psychological injuries, and the ongoing extent of Ms Pearse’s physical injuries.
Ms Pearse’s oral evidence as to her current physical state was that she has low level neck pain occasionally (for example, once a week for 15 minutes when she wakes up) and reduced rotation. Her back and hip pain has largely resolved, as have the nightmares. Ms Pearse had some physiotherapy in late 2016 because of some discomfort in her right knee, but that also appears to have resolved. I accept that evidence. Ms Pearse claims, through the medical evidence before the Court, to have sustained an adjustment disorder with mixed anxiety and depressed mood. However, a later report by the defendants’ medico-legal expert indicated that the plaintiff no longer met the criteria for such a disorder, but may have a specific phobic anxiety about taxi travel.
Having heard Ms Pearse’s evidence in the witness box and reviewed the competing medical evidence on this point, it does not appear that the claim to any adjustment disorder remains valid now. The claim in terms of severity of psychological symptoms in the years following the accident also appears to be exaggerated.
I was not convinced by Ms Pearse’s claims to have an ongoing reluctance to catch taxis to the extent that she avoids them, or that the same anxiety is felt when she uses an Uber service. Nor was I persuaded that Ms Pearse had refrained from undertaking any therapy to deal with such anxiety for financial reasons. The lack of any psychological assistance over the years is consistent with Ms Pearse not requiring it. The prognosis for Ms Pearse’s full rehabilitation was accordingly good.
I consider that Ms Pearse’s transport decisions are mainly attributable to personal lifestyle choices given the increased presence of Uber and convenience of other forms of transport (about which she was examined and cross-examined). I do not accept she has any difficulty using the Uber service that is in any way attributable to the accident. She spoke about the service during her oral evidence in terms that indicated a high degree of familiarity arising from regular use, which is inconsistent with the asserted fear or anxiety.
Non-economic loss (general damages)
The assessment of compensation general damages relies very heavily on the impression made by the plaintiff on the finder of fact: Tsueneaki v Stewart [2013] ACTCA 34 at [30].
In assessing the damages payable in respect of Ms Pearse’s past and future non-economic loss, I have had regard to the comparable authorities provided by the parties (see s 99 of the Act), some of which included decisions in the Magistrates Court. Were it not for the fact that Ms Pearse’s case was allied to that of Mr Cockburn on the facts, this claim would have been appropriate to be heard in the Magistrates Court.
Seta v Baker [2012] ACTSC 75 (Seta)and Wattam v Jorgensen [2012] ACTSC 111 (Wattam)each provide guidance. Those decisions concerned motor vehicle accidents resulting in whiplash and soft tissue injuries, coupled with a resultant psychological disability.
In Seta, Acting Justice Sidis assessed general damages at $80,000, allocating $30,000 to past pain and suffering and $50,000 to the future. In Wattam, Burns J allowed $70,000, allocating $45,000 to the past.
The plaintiffs in each of those cases suffered more serious injuries and disabilities, and the impact on their social activities and lives appears to have been greater. It is to Ms Pearse’s very great credit that she has not allowed the accident to hold her back in really any meaningful way. As the defendants submitted, Ms Pearse has proven to be a high achiever, academically, professionally and in terms of her physical fitness.
In Eames v Shain [2012] ACTSC 116, the plaintiff was involved in a low speed motor vehicle collision where the plaintiff’s claims of physical and psychological injury were found to be exaggerated. An award of $40,000 for general damages was made and the injuries were described as being of ‘moderate severity’.
In Baxter v Insurance Australia Limited t/as NRMA Insurance [2015] ACTSC 273, Mossop AsJ (as his Honour then was) increased a plaintiff’s general damages on appeal from $20,000 to $30,000 in circumstances where the plaintiff was accepted to suffer occasional low-level physical symptoms aggravated by certain activities.
Those cases each provide an appropriate range in the factual circumstances of Ms Pearse’s injuries and disabilities. Accordingly, I would have assessed damages for non-economic loss in the sum of $40,000, allocating $30,000 to past non-economic loss and $10,000 to future non-economic loss.
I would have allowed interest on the past general damages of $30,000 at a rate of 2% although given the findings on liability, it is unnecessary to calculate the interest payable.
Past economic loss
Ms Pearse claims that she suffered a six-month delay in entering the full-time workforce after the conclusion of her university studies. However, it is accepted there would have been an offset of the additional income she earned in 2013 from her employment at Woolworths.
I do not accept that the accident was the cause of Ms Pearse deferring completion of what became her final subject at university. The fact that she was able to complete the other subjects, and more importantly, that she only attempted the statistics subject for two weeks before withdrawing, is inconsistent with the accident contributing to Ms Pearse’s decision to defer completion of her degree.
I do however accept that Ms Pearse had to take at least three days off work following the accident and may have had some temporary interference with her capacity to work. Accordingly, would have assessed past economic loss at the amount submitted by the defendants, namely $10,000.
Again, I would have allowed interest on that sum.
Future economic loss
The parties are agreed that Ms Pearse will not suffer any future economic loss.
Past out of pocket expenses
Past out of pocket expenses have been agreed by the parties at $3,942.
Future out of pocket expenses
Once again, Ms Pearse appears to be fortunate in that her own mental fortitude and evident positive attitude towards life has greatly assisted her. Any residual physical and psychological symptoms are now minor. The defendants have nevertheless submitted that a sum of $2000 would be appropriate. Having regard to the agreed past quantum of out of pocket expenses, and noting that Ms Pearse’s physical and mental health has improved since the accident, and considering that future out of pocket expenses may be required intermittently in the coming years, I would have allowed a sum of $4000 as adequate compensation for any periodic requirement for counselling or similar therapy and for any flare up of any injury requiring Panadol or occasional treatment over the coming years.
Gratuitous or domestic assistance
The parties have agreed that past domestic care was required and the quantum has been agreed at $3,270.
The parties have also agreed that Ms Pearse does not require future domestic care.
Superannuation
Given that I would have allowed $10,000 for past economic loss, the loss in superannuation would have been 11% or $1,100.
Conclusion on damages in respect of Ms Pearse
For the above reasons, had it been necessary to do so, I would have awarded to Ms Pearse damages in the sum of $62,312 plus interest as specified.
Mr Sellick-Wilson
Had I found that Mr Jacobsen breached any duty of care, the amount of damages for Mr Sellick-Wilson was agreed between the parties at $62,500, which I have assumed included interest. Although I have had regard to the Statement of Particulars dated 4 May 2017, I was not provided with sufficient detail to set out here the basis for such calculation, and it is unnecessary to do so.
Mr Cockburn
Mr Cockburn is 29 years old. He was 23 at the time of the accident.
Prior to the accident, Mr Cockburn was generally well and employed full time as a tiler. This involved heavy physical activity. He had an issue with his left shoulder, being recurrent dislocation. However, the evidence does not establish that the condition impacted on his paid work as a tiler.
Accordingly, I accept that Mr Cockburn’s employment history demonstrates a consistent pattern of full time employment and work which might fairly be described as having been of a heavy manual nature: c.f. Huscher v Huscher(1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ.
As a result of the accident, Mr Cockburn sustained a lower back injury which extends to his upper left leg and precludes him from working as a tiler. That is accepted. He will need to retrain.
In their respective reports, Dr McBurnie, occupational physician, and Dr Richardson, occupational physician and injury management consultant, stated that Mr Cockburn’s chronic shoulder dislocation problems were likely to interfere with his capacity for work as a tiler irrespective of the accident. However, that evidence does not rise as high as to substantiate that such an occupation would have been precluded by a pre-existing injury. Again, there was little sign that it had affected Mr Cockburn’s work capacity previously. I would have placed little weight on that evidence.
In 2013, Dr Matias, consultant psychiatrist, diagnosed Mr Cockburn with a major depressive disorder as a result of the accident. As with Ms Pearse, and likewise to his credit, Mr Cockburn has managed to work through that disability, so that by 8 September 2016, Dr Knox, also a consultant psychiatrist, determined that there was no extant residual psychological disability. This is supported by the opinion of Vincent De Giovanni, vocational psychologist, who found in November 2016 that Mr Cockburn was not experiencing any symptoms of depression, anxiety, or stress.
Mr Cockburn’s evidence was generally to the effect that he was consciously attempting to better his situation and working around his disability to obtain employment in the industry that he knows. Mr Cockburn has learnt to better manage his symptoms, and Mr Cockburn’s present intention is to undertake a Certificate IV building course to obtain a builder’s licence, with a view to establishing a business of his own.
While the onus is on Mr Cockburn to prove the loss for which the compensation is claimed (Todorovic v Waller (1981) 150 CLR 402 at 412), it is not incumbent upon the injured plaintiff to prove what employment he is not incapacitated from performing. Effectively, the defendants bore the onus in that regard.
There were some questions asked as to whether Mr Cockburn could physically cope with the requirements of working in a shop. In addition, the evidence of Mr De Giovanni was that educational upgrading should give him the necessary proficiency to meet the academic demands of formal retraining. Whether that is realistic is another thing.
Non-economic loss (general damages)
Mr Cockburn’s injury and resulting disability is more serious than that of Ms Pearse, both in terms of the initial injury and the duration of the disability (ongoing). The disability he suffers has had a significant, indeed life-changing, impact on Mr Cockburn’s work capacity.
Mr Cockburn’s evidence was that the injury and resultant disability affecting his performance at work, and had a significant effect on his capacity to enjoy life. He had difficulty sleeping and required sleeping tablets. He took a lot of painkillers, his mood altered and he became depressed. He stopped going to the gym which he had previously attended on an almost daily basis.
Mr Cockburn relies on Dawson v Fryer [2016] ACTSC 263 (Dawson) and Forge v Rewers [2017] ACTSC 179 as providing assistance with the determination of general damages. Each of those cases concerned motor vehicle accidents and plaintiffs who sustained similar injuries with a similar impact, noting that the plaintiff in Dawson was also found to have a chronic psychological adjustment disorder with depressed and anxious mood.
Those decisions are generally comparable, recent decisions of this Court. I would have allowed $100,000 as an appropriate sum in damages for Mr Cockburn’s non-economic loss. I would have allocated $50,000 to past non-economic loss.
Again, interest would have been allowed on the $50,000 sum at 2%.
Past economic loss
Mr Cockburn contends that past economic loss ought be assessed in relation to the period of 18 months after the accident. There were other intervening factors since the accident (which it is unnecessary to set out here) which reduced the period for which Mr Cockburn is able to claim lost income.
The defendants contend that a fair allowance for past economic loss is $52,000, based on earnings of $1000 per week for 52 weeks.
Mr Cockburn’s taxable income for the financial year 2011/2012 was $111,265. It is not disputed that Mr Cockburn ceased work shortly after the accident, and I accept the submission that the income for that financial year would been approximately 30% higher absent the accident, notwithstanding the cross-examination to the contrary. Although the defendants were circumspect about the figures put forward as being truly reflective of the income (in part because of the late filing of the tax return) and suggested reasons why the income might be indicative of a ‘good year’, Mr Cockburn was clearly a hard worker before the accident and I consider the figures to be plausible. His personality as observed in the witness box and his demonstrated ability to overcome adversity indicates that he has drive and I accept he would have achieved at least those earnings.
The financial evidence before the Court permits a finding on the balance of probabilities that Mr Cockburn lost something in the order of $156,000 over an 18-month period ($2000 nett per week for 78 weeks), attributable to the accident.
Interest would also have been allowed.
Future economic loss
As to future economic loss, Mr Cockburn submits that it is appropriate to award a sum equivalent to three years in wages because:
(a)Mr Cockburn is permanently unfit for tiling work;
(b)His prospective working life is in the order of 40 years;
(c)His capacity for sedentary work is untested and his past literacy issues will be a significant barrier;
(d)There is no evidence that his earnings would be at or near the level of his pre-injury earning capacity; and
(e)The defendants have not discharged their onus (discussed above).
Mr Cockburn quite properly did not allege that he was not able to work again. I accept that it will take him time to retrain and re-establish a career in the building industry. Once that occurs, it is likely that he will be able to attain pre-accident earnings.
The time that it takes to retrain and re-establish in a new career is likely to take some years. However, it is anticipated that Mr Cockburn would be able to earn some income while this transition takes place. Accordingly, I would have allowed a buffer of $150,000.
Past out of pocket expenses
Past out of pocket expenses were agreed at $3,875.95
Future out of pocket expenses
Mr Cockburn seeks compensation in the amount of $15,000 for future out of pocket expenses. The defendants submit that the amount ought be $5,000.
I accept that Mr Cockburn may require physiotherapy and pain medication from time to time on an intermittent but ongoing basis. Mr Cockburn submitted that given a life expectancy of 56 years, an allowance of $15,000 is equivalent to roughly $10 per week for future treatment needs.
This is realistic. It is not excessive and the defendants did not put forward a sufficient reason to find otherwise. Accordingly, I would have awarded $15,000 for future treatment needs.
Gratuitous or domestic assistance
As to past domestic assistance, Mr Cockburn made a claim, albeit limited to 18 months, of 10 hours per week. However, it does not appear to me that the oral evidence really supported any established need for such assistance arising from the accident.
Mr Cockburn fairly stated that with regard to the requirement for assistance, it is not that he can no longer undertake the tasks; rather, he has to approach the task in a different way so as not to cause his back injury to flare up, and is consciously aware of his injury. He attempts to work around his limitations.
In light of that evidence, I accept the defendants’ submission to the extent that no significant allowance for future gratuitous assistance ought be made. However, given the nature of his injury, he is not going to be able to perform any chore that requires bending, twisting and movements close to the floor. I would have considered it appropriate to award a $7,000 buffer for the minor assistance that his partner will provide in the future years.
Superannuation
Superannuation would have been payable in respect of the past economic loss of $156,000 at 11% or $17,160.
Conclusion as to damages in respect of Mr Cockburn
Had it been necessary to quantify damages, in light of the above findings, they would have been quantified at $449,035.95 plus interest as referred to above.
This amount does not take into consideration any adjustment required for Mr Cockburn’s contributory negligence.
Conclusion and Orders
For the above reasons, the plaintiffs have not been successful in establishing the liability of the defendants. The defendants are thus entitled to judgment in their favour.
Costs are in the discretion of the Court and ought follow the event on this occasion. However, if either party wishes to seek that the Court make different orders as to costs, they are required to make any application within seven days. If no such application is made, the operative order will be that the plaintiffs pay the defendants’ costs.
The Orders of the Court are as follows:
1. Judgment is entered for the defendants.
2. The plaintiffs are to pay the defendants’ costs.
3. Order 2 is stayed for 7 days.
| I certify that the preceding two hundred and twenty-five [225] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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