Reardon v Seselja

[2021] ACTCA 4

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Reardon v Seselja
Citation:	[2021] ACTCA 4
Hearing Date:	8 February 2021
Decision Date:	11 March 2021
Before:	Burns, Elkaim and Perry JJ
Decision:	1. Appeal allowed.
2.  Set aside the orders made in favour of the plaintiff by Crowe AJ on 26 June 2020.
3. In lieu thereof, order:

a. Judgment for the defendants.

b. The plaintiff is to pay the defendants’ costs.

4.    The respondent is to pay the appellants’ costs of the

appeal.

Catchwords: 

TORTS – NEGLIGENCE – Motor vehicle accident – whether trial

judge erred in finding the first appellant to have breached his duty

of care – where the first appellant’s response was affected by

violent and threatening attack upon him and a passenger in his

car by two assailants – where the first appellant’s actions accorded with the conduct of a reasonably prudent person –

appeal allowed

APPEAL – NEGLIGENCE – Motor vehicle accident – breach of duty of care – agony of the moment – whether primary judge erred

in finding breach of duty of care

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) ch 4 pt 4.2, ss 42, 43, 44

Cases Cited: 

Abdallah v Newton (1998) 28 MVR 364
Cockburn v Jacobsen [2017] ACTSC 380; 83 MVR 71
Cook v Cook (1986) 162 CLR 376
Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Imbree v McNeilly [2008] HCA 40; 236 CLR 510
Leishman v Thomas (1957) 75 WN (NSW) 173
Marien v Gardiner [2013] NSWCA 396; 66 MVR 1
RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424
Seselja v Reardon [2020] ACTSC 167
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422

Volanne Pty Ltd v International Consulting and Business

Management (ICBM) Pty Ltd [2016] ACTCA 49

Parties: 

Linden Reardon (First Appellant)
Insurance Australia Limited Trading As NRMA Insurance Limited
(ACN: 000 016 722) (Second Appellant)
Sophia Seselja (Respondent)

Representation: 

Counsel

K Rewell SC (First and Second Appellant)
D Campbell SC with A Muller (Respondent)

Solicitors

HWL Ebsworth Lawyers (First and Second Appellant)

Maliganis Edwards Johnson (Respondent)

File Number: 

ACTCA 25 of 2020

Decision under appeal: 

Court:	ACT Supreme Court
Before:	Crowe AJ
Date of Decision:	26 June 2020
Case Title:	Seselja v Reardon
Citation:	[2020] ACTSC 167

BURNS AND PERRY JJ: 

Introduction 

............................................................................................................................................. 2

Relevant 

principles ................................................................................................................................. 3

Factual findings by the trial judge ........................................................................................................ 7

(a)	Findings as to the reliability of the eyewitness evidence ............................................................... 8
(b)	The trial judge’s findings as to the manner in which the accident occurred ................................... 9

(i) Events prior to the Commodore stopping ahead of the Lancer ................................................... 9
(ii) The attack by the occupants of the Commodore ........................................................................ 9
(iii) The reversing manoeuvre and the ensuing collision ................................................................10

(iv) Awareness of the presence of the Suzuki before reversing .....................................................11

The trial judge’s reasoning ..................................................................................................................11

Consideration .......................................................................................................................................12

Conclusion ............................................................................................................................................15

Introduction

1.       This appeal challenges the finding by the trial judge that the first appellant, Mr Linden Reardon, breached his duty of care when on 13 July 2015 he reversed his

mother’s Mitsubishi Lancer (the Lancer) into a Suzuki Swift (the Suzuki) driven by the

respondent, Ms Sophia Seselja, causing her significant personal injury. The second

appellant, Insurance Australia Limited Trading as NRMA Insurance, is Mr Reardon’s

compulsory third-party insurer.

2.       The issues on the appeal are narrow. The appellants do not take issue with any of the

trial findings of fact. Nor do the appellants challenge the trial judge’s assessment of damages for personal injury in the sum of $260,955.13 (appellants’ submissions dated

21 December 2020 (AS) at [9]).

3.       However, the appellants contend that Mr Reardon reversed his car “in the agony of the moment” when he and his front passenger were under attack from the occupants of a

Holden Commodore (the Commodore) which had stopped suddenly, close in front of them. As a consequence, the appellants contend that Mr Reardon did not breach his duty of care. Rather, in their submission the trial judge should have found that in the particular circumstances facing Mr Reardon, his actions accorded with those of a reasonably prudent driver in the same circumstances. The appellants contend that

Mr Reardon’s actions in responding to the emergency were analogous to those taken

by the relevant drivers in Abdallah v Newton (1998) 28 MVR 364 (Abdallah) and Leishman v Thomas (1957) 75 WN (NSW) 173 (Leishman) who were found not to have breached their duties of care.

4.       For the reasons set out below, we would allow the appeal.

Relevant principles

5.       The principles by which the appeal falls to be determined were not in issue and can be summarised as follows.

6.       First, the principles governing the circumstances in which a court is entitled to set aside the findings by the trial judge are well settled and were recently summarised by Perry J in RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 at [78] in a passage approved by the ACT Court of Appeal in Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49 at [53] as follows:

(a) A fundamental distinction is drawn between the approach of an appellate court in two

different classes of cases – the drawing of inferences from admitted facts or facts found

by the trial judge, on the one hand, and findings which depend upon the view taken of conflicting oral testimony, on the other hand (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy) at 146 [88] (McHugh J); Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844 (the Court); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306

(SRA v Earthline) at [93] (Kirby J)). … The assessment of a witness’ (sic) state of mind

has also been said to fall within the second category of cases: Bendigo [Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500] at 544 (sic) [141] (Heydon J) (citing with approval Nocton v Lord Ashburton [1914] AC 932 at 957 (Viscount Haldane LC)).

(b) With respect to cases falling within the first class, the principle is that expressed by Gibbs ACJ, Jacobs and Murphy JJ in Warren v Coombes (1979) 142 CLR 531 (Warren v Coombes) at 551, namely:

…the established principles are, we think, that in general an appellate court is

in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

In so holding, the High Court rejected the approach of judicial restraint adopted in some of the authorities which required that error be demonstrated in the decision of the primary judge before the appellate court would reverse findings of fact or inferences from fact provided that both inferences were open: see further the detailed and helpful analysis of the authorities by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592 (Kelso) at [65]-[95] (with whose reasons the remainder of the Court agreed).

7.       As earlier explained, the challenge in the present case is to inferences drawn by the trial judge from facts found by his Honour.

8. Secondly, as the trial judge held at [310], the starting point is Chapter 4, Part 4.2 of the Civil Law (Wrongs) Act 2002 (ACT) (CL(W) Act). The relevant provisions provide as follows:

42            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.

43            Precautions against risk—general principles

(1) A person is not negligent in failing to take precautions against a risk of harm

unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would

have taken those precautions.

(2)

In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

(a) the probability that the harm would happen if precautions were not taken;

(b) the likely seriousness of the harm;

(c)	the burden of taking precautions to avoid the risk of harm;
(d)	the social utility of the activity creating the risk of harm.

44            Precautions against risk—other principles

In a proceeding in relation to liability for negligence—

...

(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; and

…

(Emphasis added).

9.       These provisions reflect the common law. No suggestion was made to the contrary.

10.     Thirdly, the standard by which reasonable care is measured is objective: Cook v Cook (1986) 162 CLR 376; Marien v Gardiner [2013] NSWCA 396; 66 MVR 1 (Marien) at [33] (Meagher JA). Furthermore, as the trial judge found and Mr Reardon accepted, in ordinary circumstances the fact that he was an inexperienced driver is irrelevant to the standard of care required of him: Imbree v McNeilly [2008] HCA 40; 236 CLR 510 at [27] (Gummow, Hayne and Kiefel JJ); AS at [22].

11.     Fourthly, the question of whether the duty of care has been breached is a question of fact: Marien at [2] (Meagher JA). It does not involve looking back at what occurred with

the benefit of hindsight but rather “looking forward from a time before the occurrence of the injury giving rise to the claim”: Vairy v Wyong Shire Council [2005] HCA 62; 223

CLR 422 (Vairy) at [105] (Hayne J); see also ibid at [124] (Hayne J). In order to undertake this task, the trier of fact must ask whether a reasonable person in the

alleged tortfeasor’s position would have foreseen that their conduct involved a risk of

harm to the plaintiff and, if so, what a reasonable person would have done by way of response to the risk: Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 (Shirt) at 47 (Mason J (as his Honour then was)). As Mason J then continued in

Shirt at 47–48:

[T]he perception of the reasonable man’s response calls for a consideration of the magnitude

of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be

ascribed to the reasonable man placed in the defendant’s position.

12.     This is not to assume that the answer to the question of what response a reasonable person may have had when confronted with a foreseeable risk of injury will always involve the taking of positive action. To the contrary, one of the possible answers to

this question is “nothing”: Vairy at [124] (Hayne J).

13.     Fifthly and more specifically, with respect to the duty of care owed by those in control of a motor vehicle, Meagher JA explained in Marien (with whose reasons Macfarlan

and Emmett JJA agreed) at [33] that “[t]he duty of the driver of a motor vehicle to users of the roadway … is to take reasonable care for their safety having regard to all the

circumstances of the case” (citing McHugh J in Vairy at [26]). It is not subdivided into

subcategories such as a duty to keep a proper lookout or to keep a safe distance from the car in front, even though the failure to do such things may constitute a breach of the duty to take reasonable care: Vairy at [26] (McHugh J).

14.     In other words, as Meagher JA explained more recently in Marien with respect to the question of determining whether the duty of care has been breached:

34. The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: [Civil Liability Act 2002 (NSW)] s 5B(1).

35. Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".

36. The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

37. Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.

(Emphasis added).

15.     Finally, in determining whether or not a party has acted in breach of their duty of care, the court must have regard to all the circumstances including an emergency or threat confronting that party. As Street CJ explained in Leishman at 175 (with whose reasons Maguire J agreed):

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 takes a step which wiser counsels and more careful thought would

have suggested was unwise.

(Emphasis added).

16.     In Leishman, the NSW Court of Appeal held that the trial judge had erred in directing the jury that, even if the defendant had been forced to swerve onto the wrong side of the road because of the sudden stoppage without warning of a truck in front of him, nonetheless the defendant had acted negligently.

17.     The decision in Leishman was applied by the NSW Court of Appeal in Abdallah on which the appellants placed particular weight. In turn, the ACT Supreme Court in Cockburn v Jacobsen [2017] ACTSC 380; 83 MVR 71 (Cockburn) followed Abdallah. The facts in Abdallah were said, by the appellants, to be closely analogous to the present case. However, in our view, while Abdallah and other cases helpfully illustrate the application of the principles, each case must turn upon a close consideration of its individual facts.

18.     In Abdallah, when driving on the motorway, a motor vehicle in which the appellant was a passenger and driven by her nephew, swerved in front of the respondent, bumping

the front of his vehicle. The nephew’s car then cut the respondent’s car off on the exit

ramp from the motorway causing the respondent to just draw to a stop approximately 5 m behind. The respondent locked the doors of his car on observing the driver walking towards him wielding two karate sticks. The nephew demanded in threatening terms that the respondent get out of the car and, when he failed to do so, smashed the

external wing mirror of the respondent’s car and then hit and kicked the windows, doors,

and side of the car. The respondent feared for his safety and decided to leave the scene as quickly as possible. At this stage he was in state of panic. As he moved his vehicle out into the stream of traffic, he was obliged, in the absence of the wing mirror, to look over his right shoulder. In so doing, he failed to notice the distance between his car and the car ahead and collided with the rear of that car as a result of which the aunt suffered injury.

19.     The trial judge in Abdallah found that the respondent was frightened when he attempted to move off and was not in possession of the faculties he would be under normal circumstances. Nonetheless her Honour concluded that it had not been beyond the respondent, even in the circumstances, to have ensured that he left a safe distance between the cars as he moved off into the stream of traffic and his negligence caused the collision: at [365] (Stein JA).

20.     Stein JA, with whose reasons the other members of the Court of Appeal agreed, held that the trial judge had fallen into error in so holding. His Honour quoted with approval the reasoning of Street CJ in Leishman, holding that the reasonableness of a

defendant’s conduct must be judged according to the circumstances of the particular

case. Applying that approach, Stein JA held at 366 that:

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.

21.     Finally, in Cockburn, two male passengers in the rear of a taxi verbally abused the driver during a journey that ended with the taxi colliding with a pole. Shortly before the

collision, the passenger who was seated behind the driver pulled the driver’s seat belt

against his chest. The taxi driver panicked, lost control of the taxi, and ran off the road.

McWilliam AsJ held that the driver’s actions accorded with the standard of care required

of him in the circumstances.

22.     In so holding, McWilliam AsJ explained at [29] in line with the principles outlined above that:

Notably, the issue is not whether Mr Jacobsen [the tortfeasor] 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; (2013) 66 MVR 1 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; (2012) 61 MVR 271 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.

(Emphasis in the original).

Factual findings by the trial judge

23.     The factual findings by the trial judge were not in dispute on the appeal save insofar as an issue arose at the hearing as to whether certain aspects of the evidence were accepted by the trial judge. In particular, as we explain below, an issue arose as to

whether Ms Seselja’s evidence that Mr Reardon initially reversed slowly and then

jerked back quickly as a result of the assailants grabbing onto the car was accepted.
The short answer is that the trial judge expressly accepted that evidence at [305].

24.     In line with the approach adopted by the trial judge, we will refer to the lay witnesses by their given names as many of the lay witnesses have the same surnames. In so doing, we also intend no disrespect.

(a) Findings as to the reliability of the eyewitness evidence

25.     The trial judge expressed reservations about the estimates of all of the witnesses as to the finer details of location, speeds, time and distances. In this regard, his Honour explained that:

287. [E]ven the reasonably contemporaneous statements that were made either weeks or months after the event cause me some concern. Moreover, the incidents which occurred were shocking and stressful. Until a few minutes before the accident itself, the plaintiff had no particular reason to be paying attention to small details. The same was true of those within the Lancer. Moreover, they were at that time very young. It was dark and I have no doubt that in the aftermath of the collision the plaintiff and all of those in the Lancer were in a state of shock.

26.     Otherwise, the trial judge found Ms Seselja to be an intelligent and careful witness but considered that her perception of the interaction between the Lancer and the

Commodore “probably represented something of an emotionally coloured perception,

having regard to the extraordinary events which subsequently unfolded” (trial judge’s reasons (TJ) at [278]). The trial judge “[o]n the whole” accepted Ms Seselja’s evidence,

subject to the reservation to which we have already referred (TJ at [280]).

27.     The trial judge was also impressed by Mr Reardon’s evidence, finding that:

It seemed to me that he was doing his best to provide truthful and, so far as he could, reliable evidence of what had occurred. I accept that to a small extent his recollection was affected by having discussed the events with other members of his family group. However, the first defendant made reasonable concessions. I thought he was a level-headed young man who coped as well as he could with the very difficult circumstances which he faced on the evening of 13 July 2015.

(TJ at [281]) (emphasis added).

28.     With respect to the other eyewitnesses, the trial judge (at [282]–[286]):

(a)	expressed concerns about the reliability of Kyle’s evidence;
(b)	had no concerns about Luke’s evidence but found that he had little recollection

of the details of what occurred;

(c) considered that some of Rebecca’s evidence was influenced unconsciously by

conversations she had had with other witnesses at various times;

(d) found Georgia to be a “straight-forward witness who testified truthfully to the

best of her recollection. She was obviously traumatised by the senseless

violence of the Commodore occupants”; and

(e) found James to be a straightforward witness also and generally accepted his evidence save for a reservation in relation to his recollection about something metallic in the hand of the Commodore passenger.

(b) The trial judge’s findings as to the manner in which the accident occurred

(i)          Events prior to the Commodore stopping ahead of the Lancer

29.     At around 8:30pm on the evening of Monday, 13 July 2015, Mr Reardon, who was then 17 years of age, was driving the Lancer in an easterly direction on Isabella Drive,

Monash, in the ACT (TJ at [3]). A friend of Mr Reardon’s, Kyle (then aged 16) was seated in the front passenger seat and in the rear were Mr Reardon’s brother Luke

(then aged 14) and his sister Georgia (then aged 16). The group had been to watch a

movie at the Tuggeranong Shopping Centre together with Mr Reardon’s older brother

James, James’ partner Rebecca, and James’ 5-year-old daughter, Ella. James,

Rebecca and Ella were travelling ahead of the Lancer in a Toyota Kluger (the Kluger)
(TJ at [3]).

30.     The trial judge found that shortly before the incidents in question, the driver of the Commodore had stopped in the Tuggeranong Shopping Centre carpark and had yelled something at the group (which was engaged in skylarking of some kind). He also found

that James said “fuck off mate” in a dismissive way to which those in the Commodore

took umbrage (TJ at [289]). However, his Honour did not see these events as crucial
(ibid).

31.     The trial judge accepted Mr Reardon’s evidence as to the interaction between the

Commodore and Lancer as they proceeded along Isabella Drive after the roundabout intersection of Isabella Drive and Drakeford Drive (the Drakeford Drive roundabout).

Specifically, Mr Reardon explained that “as the two vehicles proceeded along Isabella

Drive, the Commodore started to alternate between slowing down and speeding up. This occurred at least twice. This forced the first defendant [Mr Reardon] to slow the

Lancer. He would then speed up to the speed limit when the Commodore sped up” (TJ

at [110]). The trial judge rejected evidence that Mr Reardon had been jockeying for position on the roadway or tailgating (TJ at [290]). Rather, his Honour found that

Mr Reardon “given his inexperience as a driver, simply did not know how to cope with

the erratic, if not irrational, conduct of the Commodore driver as the two vehicles

proceeded through the Drakeford Drive roundabout and along Isabella Drive” (ibid).

(ii)         The attack by the occupants of the Commodore

32.     The trial judge found that the Commodore stopped about two thirds of the way along Isabella Drive between the Drakeford Drive roundabout and the roundabout intersection of Isabella Drive and Clive Steele Avenue (the Clive Steele Avenue roundabout) (at [291]). It was not in issue that the Lancer then stopped approximately 2 m behind the Commodore (TJ at [295]).

33.     His Honour found at [293] that the assailants then emerged from the Commodore and proceeded at a fast walking pace towards the Lancer. His Honour further found that

“[t]he driver had a metal object, probably a large spanner, up his left sleeve. He slipped

it out as he approached the Lancer and at one point shaped to strike the driver’s side window”. Mr Reardon’s account of the Commodore driver’s conduct was accepted by the trial judge at [293] and had been described earlier in his Honour’s reasons as

follows:

111. At some point along Isabella Drive before the Clive Steele Avenue roundabout, the Commodore driver slammed on his brakes and stopped in the middle of the road. The first defendant described the driver and the front seat passenger of the Commodore getting out and running back towards the Lancer. The driver was yelling and swearing at those in the Lancer.

112. The first defendant’s door was locked. The Commodore driver was bashing on the driver’s side window and displaying an object which the first defendant saw as a weapon.

The first defendant said he was “really scared”. He was worried that someone in the Lancer

might be seriously hurt. The first defendant said that Georgia was screaming, Luke was
crying and Kyle was pleading with his assailant to let him go.

34.     Mr Reardon said that the Commodore passenger was also yelling and managed to

open Kyle’s door and grabbed him “by the neck and shoulders and tried to rip him out

of the car” (TJ at [111]).

35.     Mr Reardon’s evidence about the attack on Kyle, and Georgia’s reaction to the attack,

is consistent with their evidence which the trial judge accepted at [293] and [294].

Specifically, the trial judge accepted that Mr Reardon’s sister, Georgia, was scared that the driver of the Commodore might have a knife and was “terrified and screaming” (TJ at [293]). In turn, Kyle’s account of what happened to him was described by the trial

judge as follows:

158. After the Lancer had come to a stop, Kyle said that he saw the occupants of the Commodore get out of the vehicle and come towards them at a fast walking pace. He saw

something shiny in the driver’s hand. The passenger was wearing a “Hi-Vis” jumper. Kyle

wound down his window to speak to the passenger. However, the passenger reached

through the window and grabbed Kyle by his clothing. He then pulled Kyle’s door open and

tried to pull Kyle out. At that point the first defendant started to reverse the Lancer.

36.     The trial judge also accepted that the passenger had slapped Kyle around the head (TJ at [5]).

37.     In addition, the trial judge found at [294] that a person from the vehicle to the left of the respondent tried to intervene as described by Ms Seselja but was unable to separate the Commodore passenger from Kyle. His Honour considered that neither Mr Reardon nor Kyle saw the third party try to intervene because he had approached from behind (ibid).

(iii)        The reversing manoeuvre and the ensuing collision

38.     Mr Reardon put the Lancer into reverse in an attempt to escape the assailants. He

reversed the Lancer and in so doing hit Ms Seselja’s Suzuki. At that point the assailants

ran back to their vehicle. They drove away at some speed, with their lights off (TJ at [6]).

39.     The primary judge accepted Ms Seselja’s account of the reversing manoeuvre by the

Lancer as Mr Reardon attempted to escape from the assailants:

305. I agree with the submission of Mr Muller [counsel for the plaintiff] that in essence, the description given by the plaintiff in her evidence accorded with the substance of the first defendant’s account. That is, that the Lancer started moving, then jerked or jumped back at

a faster speed. The distance which it travelled is logically governed by my finding as to the location of the Suzuki. I find that the Lancer reversed at least one and a half car lengths (which I take to be a distance of 7 to 8 metres). I do not accept as reliable the estimates of time, speed or distance given by the first defendant or Kyle.

(Emphasis added; see also TJ at [6] and [269]).

40.     In this regard, the trial judge had earlier explained in his Honour’s reasons that:

264. The plaintiff’s [Ms Seselja’s] account in her evidence described a slow reverse and then the Lancer shooting back. She saw the Commodore driver grab the Lancer driver’s door.

The plaintiff said that the female passenger in the rear looked back. The open door of the Lancer knocked the Commodore passenger who was assaulting Kyle, and the third party intervenor jumped out of the way.

41.     Accepting Georgia’s evidence at [194], the trial judge held that the ensuing collision was “not a major one. … [h]owever, it was clearly more than a mere bump” (TJ at [306]).

Seeing the events unfolding before her, Ms Seselja was braced on the steering wheel with her right foot on the brake, explaining how her right hip was injured in the way alleged (TJ at [307]). Ms Seselja did not suffer any wounds in the accident (cuts, abrasions or the like) and agreed that the damage to the Lancer was minor and superficial (TJ at [65]). The trial judge did not specifically make a finding as to the extent

of the damage to Ms Seselja’s Suzuki. However, while at first instance Ms Seselja

disagreed in cross-examination with the proposition that the damage was minor, she described the damage as such in a 2015 report to police (TJ at [65]). In our view,

Ms Seselja’s description of the damage as minor in that report should be accepted. Not

only was that evidence contemporaneous, but it accorded with the description of the
damage to the Suzuki by Mr Reardon and Kyle (TJ at [124], [131] and [159]).

(iv)        Awareness of the presence of the Suzuki before reversing

42.     The trial judge found that Ms Seselja had stopped the Suzuki at least one and a half car lengths behind the Lancer or about 7 to 8 metres (TJ at [298]).

43.     The trial judge accepted Ms Seselja’s evidence that after she pulled up and put her

hazard lights on, she saw the rear seat passengers of the Lancer (Luke and Georgia)

look back at her (TJ at [299]). However, his Honour accepted Mr Reardon’s evidence

that he was not aware of the presence of the Suzuki when he reversed into it. In this
regard:

(a)	the trial judge accepted Mr Reardon’s evidence that he looked in his rear vision
mirror when he first stopped behind the Commodore and did not see any vehicle behind him (TJ at [301]); and
(b)	the trial judge found that:

303. Once the Commodore occupants got out of the vehicle and approached the

Lancer it is clear that the first defendant’s attention was focussed on them and

particularly on [the] driver who was approaching his side of the Lancer. I accept his evidence that he simply did not become aware of what was happening behind him once the attacks by the Commodore occupants commenced. The first defendant assumed, having seen nothing in his rear vision mirror, that there was nothing behind the Lancer.

44.     As to the first of these matters, argument on the appeal proceeded on the assumption that Ms Seselja was probably 70 to 80 m behind the Lancer when Mr Reardon stopped

and looked into his rear vision mirror. This assumption is consistent with the trial judge’s finding that Ms Seselja had “gradually” closed a gap of (about) 100 m between her car

and the Lancer given that the Commodore and Lancer had slowed and sped up at least twice. Further, his Honour found that even if Ms Seselja had driven a little under the speed limit of 80 km per hour, she would have been only a few seconds behind the Lancer when it came to a halt (TJ at [302]).

The trial judge’s reasoning

45.     The trial judge held that Mr Reardon failed to keep a proper lookout in breach of his duty of care which caused the collision between the Lancer and the Suzuki at [322] for the following reasons:

318. I have accepted that the first defendant did not look back to check behind the Lancer immediately before he reversed. I also accept that the reason he did not do so was that he was scared and was focussed on the actions of the occupants of the Commodore. As the first defendant said in his evidence, he was reversing to get away from them. He was intending to move back and then to drive around the Commodore.

319. However, the difficulty for the defendants here is the evidence (which I have also accepted) that the first defendant did look in his rear vision mirror when he first stopped the Lancer. However, he said that he did not see any car behind the Lancer. There really is no adequate explanation for him failing to see the approaching Suzuki. It is probable, as testified by James in particular, whose evidence I accept on this issue, that the street lighting was poor. That makes it all the more surprising that the first defendant did not see the headlights of the Suzuki. Even if the Suzuki was 100 metres away (and I find that it was probably somewhat closer at the time when the first defendant looked at his rear-view mirror) the first defendant should have seen it. Moreover, if he had seen the Suzuki he would have realised, given that there was only one eastbound lane at that point, that it was probable that there would be at least one car stopped behind the Lancer in the coming seconds.

320. It may be that the first defendant’s failure to see and appreciate the presence of the

Suzuki was the product of his inexperience as a driver. Indeed, that seems to me to be the most likely explanation. However, I am satisfied that that failure amounted to a breach of the applicable standard of care in the circumstances. The first defendant knew that the Commodore had been driving aggressively and erratically. For it to have stopped, with its lights off, on a single lane of what was a significant arterial road was extremely unusual. A reasonable driver in those circumstances would, in my view, have been carefully checking his/her surrounds and thinking of options for escape even before the Commodore occupants had emerged. A person in that situation should have checked the rear vision and noted the presence of the Suzuki. Once aware of it, the fact that it would probably be stopped behind the Lancer would have been a factor which he/she would have taken into account if it did become necessary to drive away from the situation.

321. Indeed, I am satisfied that if the first defendant had seen the Suzuki he would have checked again before reversing, and thus avoided the collision. It was far enough back to have allowed him to reverse to create enough room to drive around the Commodore without colliding with the Suzuki. While I have no doubt that the first defendant was fearful, and perhaps even panicky, I do not believe that, if he had been aware of the presence of the Suzuki, he would nevertheless have so lost the capacity for risk assessment as to have reversed in an uncontrolled way.

(Emphasis in the original).

Consideration

1. The essence of the appellants’ challenge to the decision below is encapsulated in the

   following passages from their written submissions:

   7. The Appellants contend that the standard of care required of Mr Reardon as assessed by the Primary Judge was too high, and failed to take into account that he reversed his vehicle in an urgent attempt to escape from a violent attack on him and his front seat passenger by the adult male occupants of a vehicle stopped only 2 m ahead of him.

   8. Specifically, the Appellants submit that…:

   1.        The Primary Judge erred in finding that Mr Reardon’s duty of care required

   him to check his rear view mirror before reversing despite being under attack;

   2.        The Primary Judge erred in finding that Mr Reardon should have recalled that a vehicle had been travelling 100 m behind him, and might possibly have stopped 8 m or less behind his vehicle, even after he was forced to stop by the vehicle ahead of him and he and his front seat passenger were attacked by the occupants of that vehicle;

   3.        The Primary Judge erred in failing to find that in the particular circumstances

   with which he was faced, Mr Reardon’s actions in reversing his vehicle so as

to escape from the attack on him and on his passenger accorded with the
actions of a reasonably prudent driver faced with the same circumstances;

4.        The Primary Judge erred in finding that had Mr Reardon been aware of the

presence of the Respondent’s vehicle behind him, the collision would not have

occurred.

47.     Ms Seselja denies that this is a case where the facts constituting the breach of duty could be said to have occurred in the agony of the moment. Rather, in her submission

the trial judge’s critical finding was the failure by Mr Reardon to keep an adequate

lookout when, upon stopping his car behind the Commodore before the occupants of

that car got out, he looked in his rear-view mirror but failed to see Ms Seselja’s car

behind him despite her headlights being illuminated and the fact that she was less than

100 m behind him. In the respondent’s submission, this breach of duty was already in

existence at the time when Mr Reardon decided to reverse his car and forms part of

the circumstances against which the reasonableness of Mr Reardon’s decision to do

so must be assessed. In the respondent’s submission, to focus only upon Mr Reardon’s

actions once the occupants of the Commodore left their vehicle and began their attack is to wrongly ignore the overall circumstances of the incident. In short, the respondent submitted that the present case:

[D]oes not in truth involve an application of the so-called principle of the agony of the moment at all. Rather, it is a case involving inexplicable failures to observe, which failures culminated in a collision with a stationary vehicle [8 m] to the rear that due to earlier failures, it was assumed [by Mr Reardon] was not there.

(Respondent’s submissions dated 11 January 2021 (RS) at [8.4.1]).

48.     Both parties accepted that without more, Mr Reardon drove negligently in reversing the

Lancer into Ms Seselja’s car (see also TJ at [311]). That concession is rightly made. In

line with the authorities earlier referred to, Mr Reardon was required to take reasonable steps to know what was happening, or might happen, in the vicinity of his car. He failed to comply with that duty when he looked in the rear-view mirror on stopping behind the Commodore and failed to notice the Suzuki behind him. Notwithstanding that the Suzuki was some 70 to 80 m away, it was night-time, the road was poorly lit, the Suzuki had its headlights on, the portion of the road behind him was straight with a single lane in each direction, and to stop suddenly and unexpectedly on the highway posed a potential and foreseeable risk for traffic approaching the Lancer from behind.

49.     In those circumstances, the reasonableness of Mr Reardon’s actions when he put his

car into reverse must be assessed by reference to a person in his position armed with the knowledge when he stopped his car that it was probable that at least one car would stop behind him in the coming seconds (TJ at [319]). This is because this was information of which he ought reasonably to have been aware for the purposes of s 42 of the CL(W) Act. Furthermore, a reasonable driver would be watching cautiously to see why the vehicle ahead had stopped and what was going to happen next, particularly in light of the somewhat erratic driving undertaken by the driver of the Commodore shortly beforehand. However, with respect, we do not agree with the trial

judge’s further finding at [320] that a reasonable person would “have been carefully

checking his/her surrounds and thinking of options for escape even before the

Commodore occupants had emerged”. In our view, that finding is made with the benefit

of hindsight. At that point in time, there was no reason why a reasonable person might have foreseen that a violent attack or other emergency might ensue necessitating an urgent and immediate escape.

50.     Critically, the circumstances of the incident as found by the trial judge paint a picture of a terrifying and unexpected attack unprovoked by anything done by the occupants of the Lancer, such that any reasonable person would have been really frightened for their safety and that of their young passengers and indeed likely would have been in a state of panic. Specifically, at the moment when Mr Reardon put the Lancer into reverse, the Commodore driver who had been yelling and swearing as he approached the car, was

bashing on Mr Reardon’s side window and armed with what appeared to be a spanner. At the same time, Mr Reardon’s friend, Kyle, was in the process of being dragged out

of the car by the Commodore passenger who had also approached the Lancer yelling.

Added to this, Mr Reardon’s 16-year-old sister was screaming in the back of the car

and his 14-year-old brother, also in the back of the car, was crying.

51.     In those circumstances, we do not consider that the trial judge at [321] correctly inferred

that, despite being “fearful, and perhaps even panicky”, Mr Reardon would not have so

lost the capacity for risk assessment as to have reversed in an uncontrolled way if he had been aware that the Suzuki was behind him. In our view, irrespective of whether Mr Reardon had previously known of the approaching car behind him, the immediacy and extent of the crisis were such that it was not unreasonable for him to put the car slowly into reverse without first checking the rear-view mirror as he focused upon the attackers, and then jerked or jumped back at a faster speed only when, it can

reasonably be inferred, the Commodore driver unexpectedly grabbed the driver’s door

on the Lancer. It was reasonable for his attention in all of the circumstances to be focused upon the assailants and making good his escape. As such, with respect, the

trial judge erred in holding that Mr Reardon’s failure to check his rear-view mirror before

reversing in all of the circumstances was most likely the product of his inexperience and did not accord with the response that a reasonably prudent person in his position with the imputed knowledge to which we have referred was likely to have had in the happenings of the moment.

52.     In this regard, we have also taken into account that Mr Reardon could not have driven forward to escape without reversing and had assailants on both sides of the car. He was only 2 m away from the Commodore. Mr Reardon had no option but to reverse for a distance and then swing out into the road around the Commodore so he and his passengers could escape from the attack, as he in fact attempted to do. Furthermore, the distance travelled in reverse was only about 7 to 8 m or one and half car lengths. Moreover, while more than a mere bump, the collision was not major, causing only minor damage to the Lancer and Suzuki.

53. In short, with the benefit of hindsight, Mr Reardon should have checked the rear-view mirror again before he commenced to reverse and, if he had done so, he would have seen the car behind him and the accident may have been avoided. However, as is plain from s 44(b) of the CL(W) Act and the authorities to which we have referred, reasonableness is not assessed with the benefit of hindsight but by looking forward from a time before the accident occurred. So viewed, this was not a case where there was an opportunity for calm reflection. As in Leishman, Mr Reardon did not act

negligently in making an error of judgment in the “so-called ‘agony of the moment’ …
which wiser counsels and more careful thought would have suggested was unwise”.

Conclusion

54.     For these reasons, the appeal must be allowed with costs. The appellants should also be awarded their costs of the trial below.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns and Perry.

Associate:

Date:

ELKAIM J:

55.     I have had the benefit of reading, in draft, the joint judgment of Burns and Perry JJ. I

agree with their Honours’ description of the facts and statement of the relevant

principles. Regrettably I do not agree with their Honours’ conclusion.

56.     There is no doubt that Mr Reardon (the first appellant), without more, drove negligently

in reversing into the respondent’s motor vehicle. However the appellants say that there

is more, in particular the circumstances in which Mr Reardon drove backwards and
collided with the respondent.

57.     The appellants say that Mr Reardon acted in the “agony of the moment” to the extent

that his actions did not constitute a breach of his duty of care. His actions were consistent with those of the relevant drivers in matters such as Abdallah v Newton (1998) 28 MVR 364 and Leishman v Thomas (1957) 75 WN (NSW) 173.

58.     The respondent says that to judge Mr Reardon’s actions on only those following his

decision to reverse, is to ignore the overall circumstances of the incident and in particular to ignore the breach of duty which was already in existence when the decision was made to reverse and which influenced the reasonableness of the decision.

59.     The respondent referred to the following passages from Marien v Gardiner [2013] NSWCA 396; 66 MVR 1 (Marien):

34 The question whether there has been a breach of that duty is to be addressed

prospectively and by reference to what a reasonable driver in the appellant’s

circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances.

35     Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident. The exercise of reasonable care requires, as the majority observed in Manley at [11],

“reasonable attention to all that is happening on and near the roadway that may present

a source of danger”. That in turn requires “simultaneous attention to, and consideration

of, a number of different features of what is already or may later come to be, ahead of

the vehicle’s path”.

36     The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat, the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.

(Citations omitted).

60.     The respondent pointed out that the incident, and the breach of duty of care, had commenced before the vehicles became stationary. Whatever the original disagreement may have concerned, the vehicles continued along the roadway with the Commodore slowing and then speeding up on a number of occasions before coming to a halt. The stopping point was not at an intersection or roundabout but rather at a random point on the roadway and was stopped for no apparent reason.

61.     The stopping of the Commodore, in the eyes of Mr Reardon, would have been at least unusual and ought to have placed him on alert that the situation was not normal. In stopping behind the Commodore, Mr Reardon was aware that he was stopping in an unusual place. This was illustrated by the respondent herself initiating her hazard lights when she came to a halt behind Mr Reardon.

62.     This is where the breach of duty occurred. The primary judge found that even though Mr Reardon had said he had looked in his rear-view mirror when he stopped his motor

vehicle, he did not see the respondent’s vehicle behind him. This was notwithstanding

that the respondent was travelling with her headlights illuminated and would have been less than 100 metres behind him (Seselja v Reardon [2020] ACTSC 167 at [319]). Her presence, and perhaps even that of other motor vehicles travelling behind Mr Reardon,

were part of the circumstances relevant to what “might happen in the vicinity of the

vehicle” (Marien at [36]).

63.    I do not say Mr Reardon should have anticipated the belligerent actions of the

Commodore’s occupants, or even that he might have to suddenly reverse, rather that

with the history of the Commodore’s behaviour during the recent journey, then coming

to a stop in an unusual place on the roadway, Mr Reardon, in stopping himself, should have made himself aware of other traffic, in particular behind him as he came to a halt.

64.     The appellants submitted that the facts in this case were an even more acute illustration of an agony of the moment situation than those in Abdallah. I disagree. There is an important distinction with Abdallah in that, in Abdallah, the defendant driver was aware of the vehicle with which he collided and the collision was a product of him misjudging his path in escaping the danger he was faced with. In other words, the act of negligence was an integral part of the circumstances which created the agony of the moment manoeuvre.

65.     In the present case, to the contrast, Mr Reardon was not, but should have been, aware of the vehicle behind him and, to quote the trial judge, at [321]:

Indeed, I am satisfied that if the first defendant had seen the Suzuki he would have checked again before reversing, and thus avoided the collision. It was far enough back to have allowed him to reverse to create enough room to drive around the Commodore without colliding with the Suzuki. While I have no doubt that the first defendant was fearful, and perhaps even panicky, I do not believe that, if he had been aware of the presence of the Suzuki, he would nevertheless have so lost the capacity for risk assessment as to have reversed in an uncontrolled way.

66.     The point can be made in a different way: Mr Reardon may well have been acting in the agony of the moment in reversing away from the danger created by the two occupants of the Commodore. However his act of reversing was performed in a manner that should have been dictated by knowledge that he ought to have already possessed

about the presence of the respondent’s vehicle. He would have been armed with this

knowledge had he not been in breach of his duty of care as a driver, before the need to reverse arose, by making himself aware of the presence of other vehicles in his vicinity.

1. It is important to emphasise the trial judge’s finding that Mr Reardon could have

   reversed and made good his escape without having to collide with the Suzuki (at [321]).

68.     For these reasons I would have dismissed the appeal.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: