Cusack v Stayt

[2000] NSWCA 244

Reported Decision: [2000] 31 MVR 517

New South Wales

Court of Appeal

CITATION:	Cusack v Stayt [2000] NSWCA 244
FILE NUMBER(S):	CA 40671/99
HEARING DATE(S):	30/08/00
JUDGMENT DATE:	30 August 2000
PARTIES :	Matthew Paul Cusack (Appellant) Sarah May Stayt (Respondent)
JUDGMENT OF:	Meagher JA at 31, 33; Heydon JA at 1; Foster AJA at 32

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 70138/98
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL:	R S McIlwaine SC/J Gruzman (Appellant) J D Hislop QC/A Quinlivan (Respondent)
SOLICITORS:	Orchiston Ranzetta Finney (Appellant) PricewaterhouseCooper Legal Lawyers (Respondent)
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	Abdallah v Newton (1999) 28 MVR 364 Gala v Preston (1991) 172 CLR 243 Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40671/99
DC 70138/98

MEAGHER JA
HEYDON JA
FOSTER AJA

30 August 2000

Matthew Paul CUSACK v Sarah May STAYT
JUDGMENT

1    HEYDON JA: This is an appeal from a verdict for the defendant, who is the respondent, found by English DCJ. The appellant, the plaintiff, was on the night of 5-6 October 1997 aged twenty-five. His height was about six feet two inches tall and his weight approached ninety-six kilos. The defendant was his then girlfriend. She was twenty-five. She was apparently much shorter than he was (Black T2, 32B).
2    The trial judge made the following findings of primary fact (Red 10R-11B and 11R-12P):

“On 6 October 1997, the plaintiff and the defendant were at the Central Coast Leagues Club carpark. Both the plaintiff and the defendant were well and truly intoxicated, the defendant tested positive following a breath analysis.
The plaintiff abused and assaulted the defendant.
The defendant retaliated.
The defendant entered her motor vehicle and attempted to drive the sedan whilst under the influence of alcohol.
The plaintiff attempted to dissuade her from such a course of action by maliciously damaging the rear window of the motor vehicle and bashing upon the window of the vehicle.
…
Accepting as I do the evidence of Mr Maclean I am further satisfied that the defendant drove forward following the breaking of the rear windscreen and attempted to exit the carpark. When she was unable to do so, she reversed the car at high speed. She lost control of the car and collided with a small brick wall. She then drove forward in the direction of the plaintiff and Mr Maclean. The plaintiff stood in the path of [the] motor vehicle waving his arms and yelling at her. There was sufficient time for him to have leapt out of the way, but he failed to avail himself of that opportunity thereby placing himself in a position of great danger. It was only after he had been lightly hit that he stepped back, but then proceeded to taunt the defendant or egg her on by encouraging her to run him over.
I am satisfied that the defendant struck the plaintiff twice, on the first occasion lightly, not causing him injury. On the second occasion, she struck him with sufficient speed to throw him on to the bonnet causing him then to fall to the ground and sustain a severe injury to his right shoulder.
I am satisfied the acts of the defendant were intentional following upon the verbal abuse, threats, assaults and taunting by the plaintiff.
I am satisfied that the defendant had ample opportunity to remove himself from the danger of being struck by the defendant, but chose not to do so and chose deliberately to stand in the path of the oncoming vehicle. “

The trial judge proceeded to conclude that the defendant owed the plaintiff no duty of care for the following reasons (Red 13Q-14I):
“When attention is given to the circumstances of this case, it is difficult to see how the plaintiff can sustain a relationship of proximity which would generate a duty of care. The activities of the plaintiff and the defendant involved a domestic dispute in which the plaintiff threatened abused and assaulted the defendant. She also assaulted the plaintiff by slapping him. Either in terror or in retaliation, she chose to drive the motor vehicle either to escape or to deliberately injure the plaintiff so as to prevent him from further harassing her. The consumption of considerable quantities of alcohol and cannabis during the evening adversely affected their capacities to act as reasonable people in the circumstances. Whilst I doubt that either of them were capable of appreciating the position in which they placed themselves, the plaintiff could not have had any reasonable basis for expecting the defendant would drive in accordance with the ordinary standards of care in the circumstances.
In this situation there was no relationship of proximity to each other such that the defendant had a relevant duty of care to the plaintiff.”

Structure of the Appeal

3    The Notice of Appeal fell into three parts. In the first part, by grounds 7 and 8 the plaintiff challenged certain factual findings of the trial judge. Secondly, by grounds 1-5 and 9 the plaintiff challenged the trial judge's conclusion that there was no duty of care. Thirdly, ground 6 contended that the trial judge erred in failing to find negligence. Since order 2 of the orders sought invited the Court of Appeal to determine the allegation of contributory negligence the plaintiff was also evidently critical of the trial judge's failure to have done so, though no ground of appeal was directed to this point.
4    The written submissions of the plaintiff and the oral argument adopted a somewhat different approach.

Erroneous Factual Findings?

5    Grounds 7 and 8 of the Notice of Appeal are as follows (Red 25D-L):

“7. Her Honour erred in finding that:
(a) there was sufficient time for the Appellant to have leapt out of the way of the Respondent’s car;
(b) after the respondent’s car lightly struck the Appellant he proceeded to taunt the Respondent and/or egg her on by encouraging her to run over him;
(c) the Appellant chose deliberately to stand in the path of the Respondent’s oncoming car.
8. The findings of fact that Her Honour made as set out in Ground 7 were against the evidence and against the weight of the evidence.”

6    The findings complained of in grounds 7 and 8 were made by the trial judge after she preferred the evidence of David Maclean to that of the plaintiff and the defendant, and to that of two eye witnesses, Brad Marshall and Matthew Yeo, at least so far as Mr Maclean's evidence differed from that of the other witness. It will be seen that the plaintiff did not really persist in the attack embodied in grounds 7 and 8 but in view of the argument advanced by the defendant in relation to duty of care it is convenient to see why it is that the trial judge found as she did.
7    An attack on her findings is extremely difficult to mount. Her well-structured reasons for judgment contain summaries of the evidence of the plaintiff, the defendant, Mr Marshall, Mr Yeo and Mr Maclean. She gave intelligible and convincing reasons for not preferring the other witnesses to Mr Maclean.
8    Of both plaintiff and defendant and trial judge said that they were “pretty intoxicated” and that the defendant had used cannabis. The plaintiff had made a statement to the police six days after the accident which was inconsistent with his evidence in chief. The defendant had made a statement to an insurance investigator on 17 December 1997 (after she had been charged and convicted of assault occasioning actual bodily harm and an offence of driving with a mid-range PCA reading) which was inconsistent with her evidence. The trial judge said at Red 20C-J:

“Neither the plaintiff nor the defendant were in any condition to give a sober account to the police of what took place. It is more probable than not that neither of them are aware from their own recollection of what occurred. Any subsequent statements made and evidence given has been given either from a consciousness of guilt or a perceived need to establish the wrongdoing of the defendant to enable a successful claim to be pursued.”

9    Of the other three witnesses, the trial judge said (Red 20J-Q):

“I prefer the evidence of Mr Maclean to that of either Brad Marshall or Matthew Yeo. His statement was made to the police on the day of the incident and he impressed as a witness whose version should be preferred over the plaintiff’s witnesses, whose recollections must have been diminished and or [flawed] by the passage of time. In many respects their versions are so inconsistent with the overwhelming weight of the evidence that they should be rejected in those respects and I do so.”

10    Mr Maclean was a part-time security officer who was on duty at the car park when the incident occurred. He did not know either plaintiff or defendant before the accident. He gave a very detailed statement to police on the day of the incident. In contrast Mr Marshall's much briefer statement was not provided until June 1999, and Mr Yeo's somewhat briefer statement was composed a few months after the incident. In all the circumstances grounds 7 and 8 are very difficult to succeed in. Perhaps for this reason neither the plaintiff's written submissions on appeal nor his oral argument directed any contention in support of them. Indeed, the plaintiff's written submissions appear to rely both on aspects of Mr Maclean's evidence and on the trial judge's findings based on it. Grounds 7 and 8 are rejected.

The Duty of Care Issue Sidestepped

11    Before developing argument critical of the trial judge's failure to find the duty of care, the plaintiff argued that it would suffice for liability if injury constituting trespass to the person for which the defendant was responsible were established, and that the trial judge's findings were that the defendant had intentionally injured the plaintiff by driving at him.
12    Trespass to the person, ie battery, was not pleaded in the statement of claim. The plaintiff's opening is not recorded. The defendant's opening does not seem to be structured by reference to any consciousness that the tort of battery was being alleged, and today counsel for the plaintiff properly informed the Court that after enquiry he had established that the issue was not raised in the trial. In my opinion the plaintiff ought not to be permitted to propound a case in battery on appeal which was not pleaded. Indeed it is not referred to in the notice of appeal and the plaintiff applied for an amendment to run it.
13    As the plaintiff said in his written submissions, voluntary assumption of risk is not a defence in a claim pursuant to the Motor Accidents Act 1988 s 76. But consent is a “defence” to battery. On the view favoured in the Australian authorities consent is a defence in the sense that if the defendant can prove that the plaintiff consented, the tort is not established: Secretary, Department of Health and Community Services v JWB (1992)175 CLR 218 at 310 per McHugh J. Alternatively consent may be a defence to battery in the sense that the proof by the plaintiff of a lack of consent is an ingredient of the tort. See the writings cited by McHugh J in Secretary, Department of Health and Community Services v JWB at 310 note 4. If the latter position is the law the pleading did not raise a central ingredient in the tort. If the former position is the law, the defendant was deprived of an opportunity to plead and prove consent. There would appear to be a significant possibility that counsel for the defendant would have conducted the trial differently by pressing the plaintiff much more firmly and fully on the question of consent, had it been raised explicitly as an issue. For that reason the plaintiff should not be permitted to propound a battery argument, and his application to amend the notice of the appeal to permit him to do so should be rejected.
14    But even if the plaintiff were to be permitted to propound this argument, it would arguably be futile. While the trial judge made no explicit finding of consent she did make findings that would support it, in holding that there was enough time for the plaintiff to have jumped out of the way, that he only stepped back after being lightly hit, that he then taunted the defendant by encouraging her to run him over, and that the plaintiff chose deliberately not to remove himself from the danger and chose deliberately to stand in the path of the oncoming vehicle. The plaintiff might have given evidence to the effect that that conduct did not show consent and that in reality he was not consenting, but he did not, probably because his evidence, which has been rejected by the trial judge, was a denial of much of the conduct. See Black T1, 29-Y and 33F and Q. Without evidence of that kind an inference of consent would appear to rise on the balance of probabilities. However, it is not necessary to consider that further.

Duty of Care

15    The plaintiff's submissions on duty of care were:

“5.2 In Cook v Cook (1986) 162 CLR 376 the High Court described the relevant principles applicable as follows:-
5.2.1 There is ordinarily a relationship of proximity between driver and passenger/pedestrian. The standard of care is that reasonably expected of an experienced competent driver.
5.2.2 Exceptional circumstances, to be established by the party asserting same, may alter the relationship so that a different standard may apply.
…
5.4 The circumstances in the case under consideration in this Appeal, do not, it is submitted, justify any departure from the [ordinary] standard as arising in para. 5.2.1.
The Respondent no doubt was, to some extent, affected by the alcohol she had consumed and upset by the Appellant’s behaviour however, it is submitted, these factors do not excuse behaviour of the kind demonstrated at the time of this accident.”

16    The trial judge's reasoning does not depend on excusing the defendant by reason of her consumption of alcohol. To say that the defendant was upset by the plaintiff's behaviour does no justice to the circumstances. They can be described in more detail as follows.
17    Before the defendant reached her vehicle the appellant, who, it will be remembered, was a big man, had been involved in a heated argument with the defendant in which the appellant, according to Mr Maclean, had abused and physically assaulted the defendant by grabbing her by the throat with both hands, pushing her, hitting her on the chest and upper shoulder area and apparently trying to prevent her from going to the car (Black T1, 26-28).
18    On reaching the car the defendant locked herself in it, as the plaintiff admitted. As the plaintiff also admitted he then swore at her, abused her viciously, hit the driver's window of the car with his hands and jumped at the back of the car, thereby smashing the back window (Black T1, 25). While the rear end window was being kicked in the defendant tried to drive away. The exit to which she drove was closed. After she had collided with a brick wall near a pylon and after she retraced her path her car struck the plaintiff twice. According to Mr Maclean the defendant was "obviously quite hysterical at this point" (Black T2, 13X-Y).
19    At the time when the plaintiff was struck by the defendant's car the plaintiff had been guilty of assaulting the defendant, battering her and inflicting malicious damage to property in which she was sitting. There was no reason to suppose that he would not inflict further violence on her.
20    The defendant was intoxicated and had used marijuana, as the plaintiff well knew (Black T1, 23B-C and 27E-H). The plaintiff thus knew before the defendant reached her vehicle that she was not fit to drive it, and that if she did there was a risk to her safety and the safety of others (Black T1, 25M-P).
21    As the plaintiff admitted, he observed the defendant trying to leave the premises unsuccessfully and he observed her violently colliding with the brick wall. To his perception it was

"obvious within seconds of her driving away that she wasn't controlling the car safely" (Black T1, 29B-C).

22    Despite the plaintiff's knowledge of the defendant's intoxication, hysterical state, inability to drive properly and mental condition stimulated by his violent conduct towards her, the plaintiff chose to stand in the path of the defendant's vehicle, even after it had struck him lightly once, when he could have readily stepped aside, and to goad her into running him over by calling out "Come on, do it." and beckoning her to do it by waving both arms, as described by Mr Maclean (Black T2, 10-13)..
23    While it was reasonably foreseeable that if the defendant drove at the plaintiff she would injure him, it is commonly asserted that the reasonable foreseeability of injury is not enough to establish a duty of care. For some time proximity was seen as the necessary extra element, but that is not now seen as decisive.
24    Another approach turns on the view that the law should be developed incrementally and by analogy with established categories. The present circumstances do not fall within or lie close to any established category.
25    None of the general principles commonly used in identifying the existence of a duty of care in relatively normal circumstances apply here. There was no special relationship between the parties or between the defendant and anyone else giving rise to any assumption of responsibility by the defendant for the plaintiff's safety. Their quarrelling had gone well beyond any stage when there was any consensual understanding between them about anything. There was no peculiar vulnerability in the plaintiff, rather it was the defendant who was vulnerable to the plaintiff's campaign of threats and violence. There was no actual reliance, and there could have been no reasonable reliance, by the plaintiff on the defendant to avoid injuring him. Indeed, he invited her to do so. While a sober driver in the defendant's position who had not been upset by the plaintiff might be said to be in a position of control, the defendant in her intoxicated and terrified condition was to the plaintiff's knowledge not in a position of control.
26    So far as the existence or extent of duties of care are to be controlled by policy considerations, there are none which favour the recognition of liability and some which point against it. To use the words of Toohey J in Gala v Preston (1991) 172 CLR 243 at 291, the law:

" … gives effect to the view seen as reflecting prevailing community standards of the person who is injured by participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to a compensation the civil law ordinarily provides."

It does not seem just that that section of the community which owns cars and pays premiums for compulsory third party insurance should have to bear the consequences of the plaintiff's conduct.

27    Orally the plaintiff advanced an argument in the alternative to this primary argument that the ordinary duty of care resting on the defendant was never changed or suspended. That alternative argument was that even if the duty of care had been suspended while the plaintiff was threatening the defendant, by the time she had driven to the closed gate, reversed and hit the wall, and struck the plaintiff on the first occasion, a sufficient break had arisen between his earlier conduct and her later conduct in hitting him, causing serious injury. The period of time involved must have been very short. There was no time for the defendant's agitation to resolve. In my judgment, what happened was part of one connected set of circumstances.
28    In my opinion the relationship of the parties to which the plaintiff had substantially contributed was not one in which the defendant owed the plaintiff any duty of care.

Negligence

29    Even if there were a duty of care the circumstances were such as to bring about a radical reduction in its normal content. It has not been shown that the defendant's behaviour was less than reasonably prudent, given the conditions in which he was placed. Her position was comparable to that of the defendant in Abdallah v Newton (1999) 28 MVR 364 - a strong case, because the injured plaintiff was not shown to have been responsible for the behaviour of her nephew which had terrified the defendant in that case into an error of judgment which caused the accident.

Orders

30    The defendant propounded various other arguments in support of the trial judge's conclusion. In the circumstances it is not necessary to deal with them. In my opinion the appeal should be dismissed with costs.
31    MEAGHER JA: I agree
32    FOSTER AJA: I also agree.
33    MEAGHER JA: The orders of the Court, therefore, are that the appeal is dismissed with costs.

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