Cody Lee Baker bht Marguerite May Morrison v The Nominal Defendant
[2012] NSWDC 40
•04 April 2012
District Court
New South Wales
Medium Neutral Citation: Cody Lee Baker bht Marguerite May Morrison v The Nominal Defendant [2012] NSWDC 40 Hearing dates: 12 - 16 March 2012 Decision date: 04 April 2012 Before: Judge M Sidis Decision: 1.Verdict for the defendant.
2.The plaintiff is to pay the defendant's costs of the proceedings.
3.The exhibits are returned.
4.My reasons are published.
Catchwords: MOTOR VEHICLE ACCIDENT: Liability issue only - 11 year old riding on open tray of uninsured unregistered utility - whether owner aware or ought to have been aware of his presence - conflicting evidence of witnesses - contributory negligence Legislation Cited: Civil Liability Act 2002 Category: Principal judgment Parties: Cody Lee Baker bht Marguerite May Morrison (Plaintiff)
The Nominal Defendant (Defendant)Representation: Mr M Windsor SC with Mr Davis (For the Plaintiff)
Mr P Cummings (For the Defendant)
Crown Solicitors (For the Plaintiff)
Moray & Agnew (For the Defendant)
File Number(s): 2009/00339403
Judgment
The plaintiff was an 11 year old minor, for whom the Minister for Community Services held parental responsibility, when he was a passenger on the open rear tray of a Ford Courier utility on 8 July 2006. The utility was not registered or insured. Mr Darren Williams, the owner of the utility was driving.
The plaintiff came off the tray as Mr Williams drove the utility west on Deakin Street, Kurri Kurri. He suffered significant injury.
This judgment deals with the issue of liability only and whether Mr Williams was negligent in:
1failing to keep a look out for children riding on the tray of the utility;
2travelling at an excessive speed in the circumstances;
3disregarding the warnings of other children in the area concerning the presence of the plaintiff on the tray of the utility;
4failing to look out for the actions of children on the nature strip before driving off in the utility;
5permitting the plaintiff to form the habit of riding on the tray of the utility when he was aware or should have been aware that it created an unreasonable risk of injury;
6failing to check in his rear vision mirror in circumstances where, if not already aware, he should have been alerted to the presence of the plaintiff on the tray of the utility.
The defendant denied any liability to the plaintiff and alleged in the alternative that there was contributory negligence on the part of the plaintiff in climbing onto the tray of the utility without the permission of Mr Williams and failing to make his presence known to Mr Williams.
Background
At the time of the accident the plaintiff lived with his brother, Kevin Baker Jnr, and other members of his family at 25 Booth Street, Kurri Kurri. He was then aged 11, he was at the time of the hearing almost 17 years old. He remained in the care of the Minister.
His home was at the corner of Booth Street and Deakin Street, Kurri Kurri. It was about 100 metres from 18 Deakin Street, the home of Mr Williams and his family, including his son Benjamin Williams. At that time Kevin Baker and Benjamin Williams were about 14 years old. They were friends who regularly spent time together, some of it at 18 Deakin Street.
Mr Williams' parents occupied the property at 20 Deakin Street. The children knew it as Big Daddy's house.
The plaintiff regularly went to 18 Deakin Street. It appeared that he had formed an attachment to Mr Williams, a truck driver, who allowed him to help him to clean and service his various motor vehicles and gave him small amounts of pocket money in return. The plaintiff told Mr Williams he wanted to be a truck driver when he grew up. He enjoyed working on the vehicles with Mr Williams.
Mr Williams was aware that the plaintiff was 11 years old at the time of the accident, that he was having difficulty at home and that he was considered to be mildly intellectually disabled.
Mr Williams owned a number of vehicles, including a Ford Courier utility of the brand and model depicted in the photograph, Exhibit A.3. There were no sides on the tray and there was, not unexpectedly, no seat belt on the tray.
The accident
The plaintiff was not in court and did not give evidence. I drew no adverse inference from his absence. The indications were that he suffered brain damage in the accident and that he had little, if any, independent memory of the circumstances in which he came off the tray of the utility. Various versions of what happened immediately prior to the accident were provided by Mr Williams, Kevin and Ben.
On 8 July 2006, the plaintiff was with Kevin and Ben when they arrived at 18 Deakin Street. Kevin and Ben played together while the plaintiff helped Mr Williams.
Mr Williams said he was preparing the utility for registration. It was parked in the driveway of 18 Deakin Street in front of another vehicle. There were two truck tyres on the tray, stacked one on the other to a height of almost one metre. They were positioned in the centre of tray, about 1.5 metres from the rear of the cab and they were held in place by a restraining strap. At least one empty 5 gallon oil drum was in the centre of the tray, positioned against the headboard. On Kevin's version there were two drums.
Mr Williams said there was a curtain covering the whole of the rear window of the cab of the utility. He said it was bolted in place to prevent it from sliding around. He agreed that he was aware therefore that he had no view of the tray of the utility from the internal rear vision mirror. He agreed that the external rear vision mirrors, if adjusted to view traffic, did not provide a view of the tray of the vehicle.
Mr Williams said that about five minutes before he left the property he told the plaintiff to go home and that he was taking the utility for registration. He said they had this conversation on the footpath outside the property. He denied that he said he was going to Cessnock for diesel or any other fuel.
After this conversation Mr Williams went into his house to collect his licence and other items he required. He came out and reversed the utility on to the road. It was necessary, when reversing into the street to travel over a cobblestoned area across the nature strip between the property boundary and the road. Mr Williams said he saw no-one as he reversed onto the road, except Kevin and Ben who were in the yard near a shed about 10 metres away.
He used his external rear vision mirrors as he reversed. He agreed that he would need to take care if he saw pedestrians in the area, particularly if they were children. He denied that any of the boys were present on the nature strip at the time he reversed.
Having reversed into Deakin Street, Mr Williams put the utility into forward gear and drove uphill. He denied that any of the boys were present on the nature strip at the time he drove away. He assumed that the plaintiff had gone home as directed. He did not ask Kevin or Ben where he was. He agreed that, if the three boys were standing in the positions shown on Exhibit B, he would have seen them and would have seen if any one of them moved from this position towards the tray of the utility.
Mr Williams said he saw and heard no-one trying to attract his attention as he drove uphill. He did not look in his external rear vision mirrors. He slowed his speed at the top of the hill where Deakin Street intersected with Stanford Street and then accelerated.
He heard a noise from the rear of the utility and looked in the left side rear vision mirror. He thought the noise might have come from a loosening of the restraining strap over the tyres. He saw legs going off the edge of the utility. He said it appeared to him as if the plaintiff stepped off. A couple of seconds later he looked again and saw the plaintiff sliding diagonally towards the gutter. He pulled up immediately.
He said he did not know that the plaintiff was on the tray of the utility. His explanation for not seeing him was that he thought the plaintiff must have been hiding inside the tyres. It had never occurred to him that he would be there. He did not know when the plaintiff climbed on. This was something the plaintiff had never done before and he gave no indication that he intended to do so that day.
Mr Williams denied absolutely that the plaintiff ever travelled on the tray of the utility before his accident. He denied that he drove him very slowly to and from Big Daddy's house or to 25 Booth Street. He denied that the plaintiff travelled on the tray up to 30 times prior to the accident.
Mr Williams agreed that he knew that the plaintiff wanted to come with him that day. He said the plaintiff always wanted to come with him or to hang around him. He said he told the plaintiff three minutes before he drove out that he could not come with him because he had business to do.
Mr Williams denied that Kevin held onto the back of the utility while riding on a skateboard. He doubted that Kevin owned a skateboard. He said he was lucky if he had shoes.
Mr Williams claimed to have been driving trucks for 28 years and that he was a professional and careful driver. He was taken his driving record (Exhibit C) that indicated that between 2002 and 2006 he was suspended from driving or fined for offences that included driving while unlicensed and driving unregistered or uninsured vehicles. His licence was suspended at the time of the accident. There were no recorded offences for actually driving in any manner contrary to the law.
Kevin confirmed that he and the plaintiff regularly went to 18 Deakin Street, where Ben Williams lived. They played games, sometimes with the plaintiff, and the plaintiff helped Mr Williams on the vehicles. He agreed that they went to and from their home to 18 Deakin Street as they pleased and that sometimes the plaintiff went home and left him there.
On 8 July 2008 after spending some time at 18 Deakin Street, Mr Williams told the boys that he was going to Cessnock. He said Mr Williams warned them four times not to get on the tray of the utility because he was going to Cessnock. He did not remember that Mr Williams went into the house before he got into the utility and reversed out of the driveway, across the nature strip and onto the road.
Kevin said that he, Ben and the plaintiff stood next to the driveway, on the western side so that they were on the driver's side of the utility as Mr Williams reversed out of the property. He marked with three crosses on the diagram, Exhibit B, their positions as Mr Williams reversed into the street.
He said that after reversing the vehicle was stationary for two to three seconds on the street. During this period the plaintiff ran diagonally towards the utility and jumped onto the tray from the passenger side. The plaintiff stood on the tray between two drums and the two tyres that were in the middle of the tray as Mr Williams drove the utility up the hill past the intersection with Greta Street. The plaintiff held onto the metal framing mesh covering the rear window of the cab.
Kevin said that he and Ben initially laughed but when the utility went past Greta Street they put up their hands and called out to Mr Williams to stop. They called out two or three times but Mr Williams did not stop. The vehicle went over the hill and he could no longer see it.
He disputed Mr Williams' evidence that there was a curtain covering the rear window of the cab. He said he had ridden on the tray and from there he was able to see into the cab of the vehicle from the tray.
He claimed that the plaintiff travelled on the tray of the utility up to 30 times before 8 July 2006. He said on those occasions Mr Williams drove very slowly to Big Daddy's house or to their home.
Kevin claimed to have a clear memory of the circumstances of his brother's accident. He was taken to the record of an interview dated 18 August 2010 with the plaintiff's lawyers that appeared in a file of the Department of Community Services (Exhibit 2).
It recorded that Kevin said he had never been on the tray of the utility. Kevin said this was incorrect and that he had been on the tray two or more times with Ben and the plaintiff. The record of the interview also stated that Kevin had seen the plaintiff on the tray a number of times. Kevin denied that it was only in court that he said that he had seen the plaintiff travel on the tray up to 30 times. He denied that he fabricated this part of his evidence.
There was nothing in the record of interview about Kevin's having been pulled along by holding on to the tray while riding his skateboard. He said he was pretty sure he told the lawyers about this. He denied that he fabricated this part of his evidence.
He agreed that the plaintiff did not call out, bang on the rear window of the cab of the utility or do anything else to alert Mr Williams to his presence on the tray. He said the plaintiff made some noise when he bumped the drums on the tray but agreed that engine of the utility was noisy and it was unlikely that Mr Williams heard it.
He agreed that the driver of a vehicle that entered Deakin Street at the Greta Street intersection and followed the utility told him that the plaintiff was inside the tyres. He denied that the plaintiff was already inside the tyres when Mr Williams reversed the utility out of 18 Deakin Street.
Benjamin Williams was a particularly unsatisfactory witness. He demonstrated an unwillingness to assist the court by initially attempting to avoid attendance at all. His excuses for failing to respond to the subpoena directing his attendance were not convincing. He initially denied any memory of what happened on 8 July 2006 prior to the accident but was subsequently able to provide details of his version of events. His denial of any memory of having provided information to police after the accident or of the information provided was also unconvincing.
His version of events was that he was at his home with Kevin on 8 July 2006. He and Kevin spent some time at the back of the property talking to Mr Williams. The plaintiff had been at the front of the property earlier but he did not remember what happened to him after that.
He said he and Kevin walked out of the property as Mr Williams reversed the utility onto the street. He did not see the plaintiff at this time. He and Kevin stood by the gates of the property as Mr Williams drove off. He denied that they stood in the positions indicated by Kevin on Exhibit B.
As Mr Williams drove up the hill he saw the plaintiff's head pop up from inside the tyres. He saw only the plaintiff's head, not his shoulders. The plaintiff at the time was laughing. He and Kevin shouted out to Mr Williams that the plaintiff was on the back of the utility and waved their arms but Mr Williams did not stop. He saw the utility go over the hill with the plaintiff still inside the tyres.
As already noted, Ben denied any memory of making a statement to police on 8 July 2006. He denied that he told police he saw the plaintiff climb on to the utility. He denied that he told them that he tried to attract Mr Williams' attention just as he drove off.
He agreed that the plaintiff constantly asked Mr Williams to take him in his car, the utility and the trucks and that Mr Williams occasionally drove the plaintiff to Big Daddy's house or to his home. He denied that Mr Williams ever took the plaintiff on the tray of the utility. He said it was a lie that Mr Williams allowed him to do this.
Ben did not remember that Kevin had a skateboard.
He agreed that heard Mr Williams tell him, Kevin and the plaintiff not to get on the back of the utility before he reversed the utility into the street.
This summary of the evidence established that there was substantial agreement on the following facts:
1The accident occurred in the afternoon of 8 July 2006 in fine weather.
2The plaintiff came from a difficult family background and was under the parental responsibility of the Minister for Community Services. He was mildly intellectually disabled.
3The plaintiff frequently went to 18 Deakin Street, 100 metres from his home at the corner of Deakin and Booth Streets. He enjoyed working there with Mr Williamson on various motor vehicles. He frequently asked Mr Williams for permission to ride in the vehicles.
4The plaintiff went to 18 Deakin Street on 8 July 2006 with Kevin and Ben. He assisted Mr Williams with work on the utility that was parked in the driveway while the two older boys occupied themselves elsewhere on the property.
5Mr Williams told the three boys that he was taking the utility off the premises to attend to some business. He told them not to get onto the tray of the utility.
6Kevin and Ben saw the plaintiff on the tray as Mr Williams drove the utility away from 18 Deakin Street. They attempted to warn him of his presence without success.
7The plaintiff came off the tray of the utility outside 26 Deakin Street, 400 metres away.
The dispute between the parties centred on facts said by the plaintiff to establish that Mr Williams knew or ought to have known that the plaintiff was on the tray of the utility at the time he drove away or that he ought to have taken steps to ensure that the plaintiff was not there.
Actual knowledge
I did not accept that the evidence established that Mr Williams had actual knowledge that the plaintiff boarded the tray of the utility before he started driving forward in Deakin Street or at any time before seeing the plaintiff come off the tray.
My reasons for this conclusion were:
1If the plaintiff, Kevin and Ben were standing in the position indicated by Kevin on Exhibit B, they were in full view of Mr Williams both as he reversed onto the road and at the time it was alleged that the plaintiff crossed the nature strip and climbed onto the utility.
2If, to the knowledge of Kevin and Ben, Mr Williams was aware that the plaintiff was on the tray of the utility, there would have been no reason for them to shout and wave to alert him to the plaintiff's presence.
3Mr Williams drove in Deakin Street in a way that indicated that he did not know the plaintiff was on the tray of the utility. Kevin said that Mr Williams drove very slowly on other occasions when he took the plaintiff home on the tray. Mr Williams had 28 years of truck driving experience. While his driving record showed a lamentable disregard for the law relating to driving licences and the registration and insurance of vehicles, there was no record that he committed any offence that suggested that he was an unsafe or irresponsible driver.
I rejected therefore Kevin's evidence that the plaintiff stood with him and Ben on the nature strip outside 18 Deakin Street so that he was visible to Mr Williams when he reversed out of the property or when the plaintiff boarded the vehicle.
I find that Mr Williams did not know that the plaintiff was on the tray of the utility at any time prior to the accident.
Should he, with care, have known?
There were two elements to this part of the plaintiff's claim. In the first, he claimed that Mr Williams with the exercise of reasonable care should have seen the plaintiff on the tray of the utility. In the second, he claimed that Mr Williams should have taken steps to be satisfied as to the whereabouts of the plaintiff before driving off.
The plaintiff relied on Kevin's evidence that he stood on the tray of the utility behind the rear window of the cab and that he therefore should have been visible had the plaintiff checked his internal rear vision mirror.
I did not accept Mr Williams' evidence that he had a curtain bolted over the rear window. Kevin had not seen it there and, more importantly, his son Ben was unaware of it.
Ostensibly therefore, if the plaintiff was standing in the manner described by Kevin, Mr Williams should have seen him.
There were two reasons why I rejected the contention that his failure to see the plaintiff constituted an act of negligence:
1All witnesses agreed that there were items on the tray of the utility that had the capacity to obscure Mr Williams' vision of the tray itself. Mr Williams said there was one oil drum on the tray; Kevin said there were two. The drum or drums were positioned immediately behind the rear window of the cab. All witnesses agreed that there were two truck tyres tied down in the centre of the tray.
2Ben reported seeing the plaintiff's head emerge from within the tyres. This was consistent with Kevin's evidence that the driver of a vehicle that emerged from Greta Street and followed the utility told him that the plaintiff was inside the tyres.
The plaintiff argued that I should draw an inference from the defendant's failure to call the driver of this vehicle. I disagreed. The onus was on the plaintiff to prove his case and the witness was available to both parties, assuming he could be located.
Although denied by Kevin, I considered that the plaintiff's hiding inside the tyres was consistent with the proposition that, unknown to Mr Williams, the plaintiff climbed inside the tyres before he reversed the utility on to Deakin Street and that, having failed to make his presence known to Mr Williams, Kevin and Ben attempted to warn him that the plaintiff was there.
This lead me to a finding that Mr Williams, even with a full view of the tray of the utility, unimpeded by any curtain or by items on the tray, would not have seen the plaintiff had he checked his internal rear vision mirror.
I concluded that his failure to see the plaintiff on the tray of the utility in those circumstances did not demonstrate negligence on his part.
Should he have checked the plaintiff's whereabouts?
The plaintiff claimed that in allowing him to ride on the tray of the utility on prior occasions, Mr Williams created in the plaintiff an expectation that he could ride on it on 8 July 2006. Having done so, and being aware of the plaintiff's age and intellectual limitations he ought to have checked for his whereabouts before driving off in Deakin Street.
This submission depended substantially upon my accepting Kevin's evidence that the plaintiff frequently travelled on the tray of the utility to the point where such an expectation arose.
I decided that Kevin's evidence that he held onto the tray of the utility while riding his skate board was a recent invention designed to strengthen his brother's case and I rejected it. On deliberation I concluded that his evidence that the plaintiff travelled on the utility up to 30 times before was also an embellishment designed to achieve the same purpose.
I was not, however, prepared to conclude that the plaintiff had never ridden on the tray before. Kevin's evidence that, when he allowed the plaintiff onto the tray of the utility Mr Williams drove very slowly for the short distances involved, had an element of reality about it. The evidence of the frequency with which this was done was left at a number of times.
I considered this to be insufficient to establish that Mr Williams created in the plaintiff an expectation that he would take him home on the tray of the utility, particularly in the light of the undisputed evidence that he told the plaintiff, Kevin and Ben that they were not to get onto the tray of the utility because he was going, on Kevin's version, to Cessnock or, on Mr Williams version, to Kurri Kurri. Furthermore, Kevin said that Mr Williams told them this four times.
The plaintiff's final argument was that Mr Williams ought reasonably to have foreseen the possibility that the plaintiff would board the tray of the utility and that he should have taken steps to guard against this possibility.
With respect, I did not accept that this reflected the law. S 5B of the Civil Liability Act 2002 requires, not that there be a possible risk, but that there be a foreseeable risk that was not insignificant.
In any event, I did not accept the premise that accident was a necessary consequence of Mr Williams' failure to check the plaintiff's whereabouts before he drove off in Deakin Street.
It would have been unremarkable that the plaintiff was not present with Kevin and Ben when he drove away since Mr Williams told him to go home. Had he searched the property at 18 Deakin Street, he would not have found him.
It was not claimed that the plaintiff persistently disobeyed Mr Williams' directions or that he boarded the tray in contravention of those directions at any time prior to 8 July 2006. It was not claimed that prior to the accident the plaintiff was defiant or wilfully disobedient.
In those circumstances, I considered it reasonable that Mr Williams expected that the plaintiff returned to his home as directed. I did not consider it reasonable to require that Mr Williams search amongst the items on the tray of the utility to satisfy himself that the plaintiff was not hiding there.
I appreciated that this plaintiff although still only 17 years old has suffered more than his fair share of disadvantage but, regretfully, I find that it was not established that there was negligence on the part of Mr Williams that was causative of the accident.
Contributory Negligence
The defendant argued for a finding of considerable contributory negligence on the part of the plaintiff. The plaintiff argued that I should find that there was none.
I considered that the plaintiff, although only 11 years old at the time, knowingly placed himself in a position of danger on the tray of the utility without thought for the consequences. He did so in direct contravention of Mr Williams' instructions.
I accepted that as a child of tender years he might not have appreciated the extent to which his actions imperilled his safety and, taking this into account, had I found negligence on the part of Mr Williams, I would have assessed the plaintiff's contributory negligence at 15%.
ORDERS
Verdict for the defendant.
The plaintiff is to pay the defendant's costs of the proceedings.
The exhibits are returned.
My reasons are published.
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Decision last updated: 20 April 2012
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