McDermott v Emmerton
[1999] TASSC 128
•23 November 1999
[1999] TASSC 128
CITATION: McDermott v Emmerton [1999] TASSC 128
PARTIES: McDERMOTT, Christine Beryl
v
EMMERTON, Dean Francis
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: 1690/1995
DELIVERED ON: 23 November 1999
DELIVERED AT: Hobart
HEARING DATES: 22 and 23 November 1999
JUDGMENT OF: Wright J
CATCHWORDS:
[Edited version of oral reasons delivered at trial]
REPRESENTATION:
Counsel:
Plaintiff: K E Read and T Levis
Defendant: K B Procter
Solicitors:
Plaintiff: Phillips Taglieri
Defendant: Piggott Wood & Baker
Judgment Number: [1999] TASSC 128
Number of Paragraphs: 10
Serial No 128/1999
File No 1690/1995
CHRISTINE BERYL McDERMOTT v DEAN FRANCIS EMMERTON
REASONS FOR JUDGMENT WRIGHT J
(GIVEN ORALLY) 23 November 1999
The plaintiff is a 48 year old resident of Rosebery and she lives at 13 Cohen Street. On 29 September 1994, she was visiting a neighbour and relative, Gerrard McDermott, at 8 Cohen Street. As she walked out of her neighbour's driveway at about 2.30pm or 3pm, her son drove up in his Daihatsu Feroza 4 Wheel Drive. He was accompanied by his girlfriend, Donna Smith who was sitting in the front passenger seat. He stopped in the middle of the road, opposite the end of the driveway. His mother came towards the vehicle and he spoke to her through the driving side window for a few minutes.
Before driving off, his mother walked around the back of the vehicle. In her evidence, she said that she "bounced" the vehicle twice by applying her right foot to the rear passenger side bumper bar of the vehicle, with her left foot off the ground. As she did so, the vehicle moved off, she said, slowly at first, but then gaining speed. She says she tried to hang on, but was unable to do so. She fell off and struck her head on the bitumen, causing severe injuries. In cross-examination, she denied that she had climbed onto the rear of the vehicle and had fallen off again while it was still stationary in the middle of the road. She also denied that she had stepped onto the bumper bar intending to ride with her son a short distance down the road to her own home. She has now sued her son for damages alleging that the injuries and her resultant disabilities were caused by his negligent driving.
The trial has been limited to the question of liability and I have heard evidence from the plaintiff, her husband, her son and Donna Smith, her son's fiancee. I am satisfied that the plaintiff herself does not have a clear recollection of the accident or, more likely, that she has deliberately attempted to slant the facts to her own perceived advantage. Her husband's evidence as to marks which he claims to have observed on the back of the vehicle the day after the accident, is, in my opinion, quite equivocal and does not necessarily support his wife's version of relevant events.
The day after the accident, Mrs McDermott made a statement to Sergeant Parker of the Rosebery Police. In it she said that she had climbed onto the back of her son's vehicle and fell off whilst it was still completely stationary. If this is true, it would be difficult, if not impossible, for her claim to succeed and this has been conceded by Mr Read. Her son also made a statement to Sergeant Parker about the accident. His statement is less specific on this particular issue, but it is perhaps more significant for what it does not say, rather than what it does say. The plaintiff says that what she told Sergeant Parker was a lie, designed by her to protect her son from prosecution for a serious offence. She says that she believed that if the motor vehicle was moving at the time she fell off, her son would be liable to be prosecuted for "attempted manslaughter" or some other serious traffic violation. Her evidence in this respect was supported, to a significant degree, I think, by her husband's evidence. He told me that they had had a conversation concerning this prospect during the course of travelling from Burnie back to Rosebery. Such an explanation as she now gives must, of course, be scrutinised with care, but having considered the evidence of the plaintiff, her husband and the defendant on this particular issue, I feel bound to say that the probability is that there is some truth in what the plaintiff has told me about this matter. I think it likely that she told Sergeant Parker that the vehicle was stationary to protect her son. It is significant, I think, that at the time she had no reason to suspect that her own injury was going to be a serious one, or certainly not as serious as it has apparently turned out to be.
The hospital notes, which were tendered in evidence by consent, and became Exhibit P4, provide substantial support for the plaintiff's present claim that her son's vehicle was moving when she fell from it. True, it is, that we do not know how these notes were compiled, and we have not heard from the authors, but the inference is available, and I think should be drawn, that Mrs McDermott told admitting personnel, both at Rosebery and Burnie, before she made any statement to Sergeant Parker, that her son's vehicle was moving when she fell from it. The fact that she changed this version of events when speaking to the police, does tend to suggest a reason such as that which she now advances for her doing so. True, it is, that she impeaches her own credibility as a consequence and that the same comment may be made about her son's evidence, and I have taken that into account in assessing what reliance I am able to place upon their sworn testimony during the course of these proceedings.
Donna Smith struck me as a generally reliable witness. Obviously she has an interest in her future mother-in-law succeeding in her claim, but it seemed to me that she was making a genuine attempt to recall and recount that which she could remember of the incident. She conceded that there were many features which she did not remember. This claim is sometimes a ploy or a refuge sought by a deceitful witness to avoid committing perjury or to cover an incapacity to give a convincing answer, but I did not receive that impression from hearing Ms Smith in the witness box. To a substantial extent, Ms Smith's evidence was supported by the defendant's account. Having heard them both, I am quite satisfied that his vehicle was moving when the plaintiff fell from it. However, I have no hesitation in rejecting the plaintiff's claim that she merely "bounced" the rear of the vehicle as she described. I am completely convinced that she mounted the back of the vehicle, in an apparently harmless bit of fun, to ride the short distance from No 8 to No 13 Cohen Street. The vehicle was not driven in a rough or jerky manner, it accelerated slowly. The street is straight and flat and has a bitumen surface and there is no suggestion that it was potholed, corrugated or uneven. What caused the plaintiff to slip or lose her grip, is still a mystery, but it is quite clear that after the vehicle had moved forward about 20 metres, she fell backwards onto the roadway. Up until that time, I find that she was a willing passenger on the vehicle.
The photographs which were tendered in evidence suggest that the rear bumper bar does not offer a particularly secure foot hold and that the level plate around the tow ball is fairly small. It is easy to see that Mrs McDermott may simply have lost her footing. Equally, she may have had hold of the wheel cover ¾indeed it is difficult to see how she could have stood on the back of the bumper and travelled on the vehicle without doing so. If the cover was loose, for example, it may well have slipped. Either alone or in combination, these factors could have caused her to fall. There is no reason for concluding that any unskillfulness in the manner of the defendant's driving was a direct cause of her falling. He may well have invited his mother to ride on the back bumper before she mounted the bumper bar as suggested by her in her evidence, but whether he did or not, I am satisfied that he knew full well that she was on the back part of the vehicle, intending to ride down to her house in that position, before he moved off.
On the basis of these findings, the defendant was plainly negligent. He should not have driven with anyone standing on the bumper bar, no matter how carefully he drove. There is always the risk of a mishap in such circumstances, and although I am not able to find precisely what it was which caused the plaintiff to lose her grip, the observations I have just made are still relevant. However, I think there was also a high degree of contributory negligence on the part of the plaintiff. She was an alert, physically active woman at the time. The precarious nature of her perch must have been obvious to her, in my opinion. She did not have to stand there, she did not call out for her son to stop at any stage, and she does not claim that he drove off before she was ready for him to do so. She only had to walk a short distance to the safety of her own home, so the journey itself was completely unnecessary.
It is difficult, of course, to be highly critical of either the plaintiff or the defendant,. There was an obvious risk in their skylarking, but it did not involve high speed, liquor or prolonged inattention. It was, nonetheless, a joint enterprise in the true sense of the word and I think that her contributory negligence cannot be compared with that, for example, of a passive passenger who fails to wear a seat belt and subsequently, whilst unbelted, falls victim to the driving of a careless driver. In the final analysis, I am quite unable to choose between the plaintiff and the defendant in terms of causation, comparative fault or culpability.
In my opinion, the plaintiff and defendant were each equally responsible and, consequently, I think it is just and equitable that judgment should be entered against the defendant for damages to be assessed, but reduced by 50 per cent on account of the plaintiff's concurrent fault. There will be judgment accordingly. The questions of costs is reserved.
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