| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0112 |
| HAYDEN NORMAN | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
---
| JUDGES: | BEACH, KENNEDY and TAYLOR JJA |
| WHERE HELD: | Shepparton |
| DATE OF HEARING: | 4 June 2024 |
| DATE OF JUDGMENT: | 7 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 123 |
| JUDGMENT APPEALED FROM: | Norman v Transport Accident Commission (Unreported, County Court of Victoria, Judge Robertson, 14 September 2023) |
---
NEGLIGENCE – Transport accident – Jury trial – Defence of volenti non fit injuria – Risk of being injured by careless or reckless driving – Whether passenger had full knowledge of nature and extent of risk of injury – Whether passenger voluntarily accepted risk of injury – Whether open to jury to find defence of volenti established – View of evidence most favourable to respondent – Defence of volenti supported by evidence – No basis for setting aside jury’s verdict – Application for leave to appeal refused.
Transport Accident Act 1986, ss 94 and 96.
Roggenkamp v Bennett (1950) 80 CLR 292; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; Imbree v McNeilly (2008) 236 CLR 510, applied.
---
| Counsel | |||
| Applicant: | Mr ADB Ingram KC with Mr J Valiotis | ||
| Respondent: | Ms RL Kaye KC with Ms E Golshtein | ||
Solicitors | |||
| Applicant: | Gordon Legal | ||
| Respondent: | Solicitor to the Transport Accident Commission | ||
BEACH JA
KENNEDY JA
TAYLOR JA:
At approximately 8:00 pm on 12 September 2018, Hayden Norman (‘the plaintiff’) was a back seat passenger, wearing a seatbelt, in a 1993 Holden Rodeo utility (‘the vehicle’) on Reef Hills Road, near Benalla, when the vehicle left the roadway and collided with an embankment and then a tree (‘the collision’).
At the time of the collision, the vehicle was being driven by Aaron Maggs. The collision was caused by the negligence of Mr Maggs in the driving, management and control of the vehicle. The plaintiff suffered significant injuries as a result of the collision.
At the time of the collision, the vehicle was unregistered. Accordingly, it was an ‘unindemnified vehicle’ within the meaning of s 96 of the Transport Accident Act1986 (‘the Act’).[1] As a result of the vehicle being an unindemnified vehicle, s 96 of the Act permitted the plaintiff to recover in proceedings against the Transport Accident Commission (‘the TAC’ or ‘the defendant’) a sum equivalent to the lesser of the amount for which he could have obtained judgment against Mr Maggs or the amount for which the TAC would have been liable if the vehicle had been the subject of an indemnity under s 94 of the Act.
[1]Section 96(8) of the Act defines an ‘unindemnified vehicle’ to mean a vehicle in respect of which there is no indemnity under s 94 of the Act and no corresponding indemnity under the law of any other State or Territory.
In August 2021, the plaintiff commenced a…
Continue reading Norman v TAC
Sign in free to access the full text
- AGLC
- Norman v TAC [2024] VSCA 123
- Case
- [2024] VSCA 123
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the evidence was sufficient to support a finding that the plaintiff had full knowledge of the nature and extent of the risk of injury and had voluntarily accepted it. The Court had to determine if the jury was entitled to conclude that the plaintiff was aware of the risk and willingly accepted it, which would mean that the plaintiff could not recover damages. This required an examination of the jury's findings in light of the evidence presented during the trial and the applicable legal principles.
The Court of Appeal found that the jury's decision was supported by the evidence when viewed in the light most favourable to the respondent. The Court held that the plaintiff must demonstrate that it was not open to the jury to find the defence of volenti established, which the plaintiff had failed to do. The Court emphasised that an appellate court cannot overturn a jury’s verdict simply because it disagrees with it. Instead, the Court must consider whether the jury could reasonably have reached its decision based on the evidence presented. The Court concluded that the evidence did support the jury's finding of voluntary acceptance of the risk, and therefore, the plaintiff's appeal was dismissed.
The Court also noted that the application for leave to appeal to the High Court was refused, which further affirmed the correctness of the jury's decision. The Court’s reasoning was grounded in established principles that an appellate court should not substitute its view of the evidence for that of the jury, provided the jury's decision is reasonably open on the evidence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As part of, or in explication of, this submission, the applicant submitted that it was simply not open to the jury to link the driving on 11 September with the driving on 12 September because, on 12 September, Mr Maggs was a ‘new driver’, who had not driven on 11 September. It was submitted that there was no basis upon which the jury could have concluded that the plaintiff (or indeed any other passenger in the vehicle) could have realised that Mr Maggs might drive recklessly or carelessly on 12 September, he not having driven the vehicle (recklessly or otherwise) on the previous day.Consideration A defendant seeking to establish the defence of volenti non fit injuria must prove that the plaintiff, against whom the defence is alleged, freely and voluntarily, with full knowledge of the nature and extent of the risk he or she ran, impliedly agreed to incur it.[18] As was said in the passage in Roggenkamp on which the plaintiff relies,[19] the question of whether a plaintiff’s acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from the conduct in the circumstances. We should note, however, that that passage[20] then goes on as follows:The inference [of the voluntary acceptance of the risk] may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as, for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not.[21][18]Imbree v McNeilly (2008) 236 CLR 510, 536 [81] (Gummow, Hayne and Kiefel JJ). See also Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289, 291 (Nicholson J).[19]Set out at [65] above.[20]Being a passage from Halsbury’s Laws of England, 2nd ed, vol 23, at pp 716–718.[21]Roggenkamp (1950) 80 CLR 292, 300 (McTiernan and Williams JJ). That said, in order to succeed in this Court, and to obtain an order overturning the jury’s verdict, the plaintiff must persuade us that it was not open for the jury to have found that the volenti defence had been made out. An appellate court is not entitled to set aside a jury’s verdict merely because the verdict is different from that which it would itself have reached. In considering the question of whether or not it was open to a jury to reach the verdict it reached, an appellate court must approach the case on the basis most favourable to the respondent to the appeal or proposed appeal. Specifically, an appellate court must assume that the jury took a view of the evidence most favourable to the respondent.[22][22]Coyne v Citizen Finance Limited (1991) 172 CLR 211, 222 (Dawson J), 227–8 (Toohey J) and 239 (McHugh J); Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 42 (Mason CJ, Deane, Toohey and McHugh JJ); John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, 1660 [17] (McHugh J), 1698–9 [183]–[185] (Callinan J); Fassbender v HW & MTA Bohlmann [2010] VSCA 204, [19] (Warren CJ and Emerton AJA), [75] (Nettle JA); Aycicek v Flowline Industries Pty Ltd [2019] VSCA 37, [50] (Beach, Kyrou and Emerton JJA).