Reynolds v Patel
[2022] VSC 211
•29 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2020 04724
| BENJAMIN REYNOLDS | Plaintiff |
| v | |
| ANILKUMAR PATEL | Defendant |
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JUDGE: | TSALAMANDRIS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 & 16 March 2022 |
LAST WRITTEN SUBMISSIONS FILED: | 22 March 2022 |
DATE OF JUDGMENT: | 29 April 2022 |
CASE MAY BE CITED AS: | Reynolds v Patel |
MEDIUM NEUTRAL CITATION: | [2022] VSC 211 |
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NEGLIGENCE – Transport accident – Negligence – Duty owed to other road users – Whether duty applies to passing cyclist – Breach of duty – Driver did not give evidence – Blatch v Archer (1774) 1 Cowp 63 – Jones v Dunkel (1959) 101 CLR 298 – Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 – Brown v Roberts [1965] 1 QB 1 – Wyong Shire Council v Shirt (1980) 146 CLR 40 – Sutherland Shire Council v Heyman (1985) 157 CLR 424 – Marten v Harrison & Anor (1988) 7 MVR 542 – Pyrenees Shire Council v Day (1998) 192 CLR 330 – Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 – Swain v Waverley Municipal Council (2004) 220 CLR 517 – Trentelman v Roberts & Anor [2004] ACTSC 39 – Manley v Alexander (2005) 223 ALR 228 – Hawthorne v Hillcoat (2008) 51 MVR 523 – Stuart v Kirkland-Veenstrain (2009) 237 CLR 215 – Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 – King v Philcox (2015) 255 CLR 304 – Homsi v Homsi (2016) 51 VR 694 – Greater Shepparton City Council v Clarke (2017) 56 VR – R v AB (No. 2) (2018) 97 NSWLR 1031.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr S Jurica | Slater & Gordon |
| For the Defendant | Ms B Myers SC with Ms E Golshtein | Transport Accident Commission |
HER HONOUR:
On 20 January 2017 at approximately 6:30pm, Mr Benjamin Reynolds was cycling from Crown Casino, where he worked as a pastry chef, to his home in Richmond. Mr Reynolds had crossed over the Swan Street bridge and was cycling in the bike lane in an easterly direction along Olympic Boulevard. It was at the time of the Australian Open tennis tournament and the traffic around Melbourne Park, in particular Rod Laver Arena, was congested. Mr Reynolds said that, without warning, the car door of a stationary vehicle to his right-hand side opened into the bike lane and blocked his path such that he was unable to avoid an accident (‘the accident’). As a result of the accident Mr Reynolds was thrown from his bike and suffered injuries to his hands and left wrist.
The car door which struck Mr Reynolds was opened by Mr Stanley Luna as he alighted from the back passenger seat of the vehicle — an Uber driven by the defendant, Mr Anilkumar Patel.
On the first day of the trial, the parties agreed to the quantum of Mr Reynolds’ damages in the event that he was successful in his claim. Therefore, the only issue for me to determine is liability.
The case proceeded via Zoom over two days. Only Mr Reynolds and Mr Luna gave evidence and they were cross-examined by Mr Patel’s counsel.
Having read the transcript of the proceedings, together with the detailed submissions of counsel, I am satisfied that Mr Patel was negligent and that Mr Reynolds was not contributorily negligent for this accident. I will now explain why.
The accident site and agreed facts
Several photographs taken of the accident area in October 2016 were tendered as exhibits. One such photograph is depicted below. Both Mr Reynolds and Mr Luna marked some of these photographs to indicate where they say the accident occurred, and where Mr Reynolds ended up on the road immediately after it.
The following is a summary of facts in respect of the scene and circumstances of the accident, which are either common ground or not disputed by the parties:
·there was a single lane for vehicles to travel in an easterly direction along Olympic Boulevard (‘vehicle lane’). This is depicted in the photograph above to the left of the centre median strip;
·there was a designated bicycle lane which ran along the left hand side of the vehicle lane (‘bike lane’);
·a short distance over Batman Avenue, on Olympic Boulevard, there was a pull in/slip lane that was reserved for taxis (‘taxi area’);
·the area was congested at the time of the accident, with the traffic in the vehicle lane either stationary or moving slowly;
·the road was dry and it was still light at the time of the accident;
·Mr Reynolds’ bicycle was struck by the rear left passenger door of Mr Patel’s Uber;
·Mr Luna was the passenger who opened the car door. He had engaged Mr Patel to drive him to 30 Olympic Boulevard, via the Uber application on his phone.
Mr Reynolds’ evidence
At trial, Mr Reynolds gave evidence that unless it was raining, he cycled the route described at [1] on a regular basis on his way home from work. Mr Reynolds was therefore familiar with the area. He said that on this evening, he was cycling at a ‘regular relaxing pace,’ which he described as not ‘fast cycling’ but not ‘crawling slow’, and at about the pace of someone running. Mr Reynolds said that he did not have a speedometer on his bike so he could not state the precise speed at which he was travelling.
Mr Reynolds’ evidence was that just prior to the accident, there were other cyclists approximately 20 to 50 metres ahead of him.
Mr Reynolds said that as a cyclist, he was ‘pretty conscious’ of the possibility of car doors being opened and would ‘always be looking in the side mirrors of cars’ and was ‘prepared that it is something that can happen.’
Mr Reynolds gave evidence that he did not see any sign that there was a passenger about to alight from Mr Patel’s vehicle prior to the accident. He could not recall whether the vehicle had its indicators or hazard lights on.
Mr Reynolds said that prior to the accident, he did not see people getting in and out of cars, nor could he recall people getting in and out of taxis. However, in cross-examination he was taken to his affidavit dated 26 October 2018, affirmed in support of his serious injury application (‘serious injury affidavit’). In that document Mr Reynolds stated:
At around 6.30 on 20 January 2017 I was riding my bicycle along Olympic Boulevard in Melbourne on my way home from work. I was riding in the dedicated bicycle lane between stationary traffic on my right, and parked cars on my left. I looked ahead of me and saw people in parked cars opening their car doors and I slowed down as a result. I believe that the Australian Open Tennis was on that evening and there was traffic controllers marshalling traffic around Melbourne park.
…
Without warning a passenger in a stationary car I was about to pass, opened their door …
Mr Reynolds was unable to explain the discrepancy between what he deposed to in his serious injury affidavit and his evidence given at trial that he could not recall seeing such activity prior to the accident.
Mr Reynolds’ evidence was that he did not have sufficient time to swerve or break to avoid the incident. Mr Reynolds said that it happened ‘pretty fast’, and he explained it as if the events were captured in three separate ‘frames’. Mr Reynolds explained in respect of the frames:
I looked down and my wheel was touching the inside of a door, and in the next frame I was in the air and then the third frame I saw I was on the ground. So it is not like I saw the door open in front of me and then I had time to brake. There was no braking time.
Mr Reynolds said that the knuckles of both of his hands struck the plastic on the inside of the car door, he then went over the top of the door head first in a forward motion and landed 1 to –2 metres away, in an area which was roughly parallel to the bonnet of the vehicle.[1]
[1]As depicted in the tendered photograph which Mr Reynolds marked.
Mr Reynolds’ evidence was that the incident occurred on the edge of the bike lane, adjacent to the upper part of the entrance to the taxi area. He denied that it happened further along Olympic Boulevard.
Mr Reynolds said that following the incident he was assisted by Mr Luna and a marshal who was working in the taxi area.
Overall, I considered Mr Reynolds to be an honest and reliable witness. He gave evidence in a straightforward and credible matter. I consider that nothing turns on the alleged discrepancy between Mr Reynolds’ serious injury affidavit and his oral evidence given at trial in relation to whether or not he saw car doors opening from other stationary vehicles ahead of him prior to the incident. I considered this minor discrepancy understandable given it is now some five years since the accident. It had no bearing on my overall assessment that Mr Reynolds was a credible witness.
Mr Luna’s evidence
Mr Luna said that at the time of the accident, he lived in Sydney, had never been to the Australian Open nor to Rod Laver Arena, and was not familiar with the area. Mr Luna said that he hired an Uber to take him to the tennis, with the nominated drop-off address being 30 Olympic Boulevard. Mr Luna sat in the rear left-hand seat for the trip. At the time, Mr Luna had a knee injury and was using two crutches to mobilise. He said that he had these crutches with him in the back seat.
Mr Luna said that during the car ride, he was looking at social media on his phone and did not pay attention to the route that was taken. Mr Luna said that as the Uber was driving down Olympic Boulevard, it was moving at a ‘snail’s pace’.
Mr Luna said that prior to exiting the vehicle, he asked Mr Patel ‘Is this okay?’. Mr Luna’s evidence was that Mr Patel’s ‘immediate response’ was to swipe the Uber application on his phone which terminated the fare. Mr Luna’s evidence was that there was no further conversation between himself and Mr Patel and he therefore ‘assumed that that was the end of the fare, that was the spot to get out, and [he] opened the door to [his] left’.
Mr Luna gave evidence that prior to alighting from the vehicle he was not aware that there was a bicycle lane to the left-hand side of the vehicle. His evidence was that Mr Patel did not give him any advice, warning or instruction not to get out of the vehicle at that spot; that he was about to exit the vehicle over a bike lane; or to take care in respect of any bicycles when getting out. Mr Luna said that if he had been so warned, he would not have opened the door.
Mr Luna said that he did not look to check for cyclists prior to opening the car door.
Mr Luna’s evidence was that at the time of the accident he did not know there was a drop-off and pick-up zone reserved for Ubers. As previously mentioned, he did not know that there was a bike lane immediately adjacent to the left of the vehicle lane prior to alighting from the vehicle.
Mr Luna stated that he obtained his driver’s licence when he was 17 years of age[2] and was aware of the importance of looking before opening a car door to make sure it was safe to open.
[2]Mr Luna lived in Tasmania at that time.
Mr Luna gave evidence that he did not actually see Mr Reynolds hit the car door, but instead ‘felt … a commotion’. Mr Luna could not be specific as to which part of the bicycle the door struck as it happened ‘so fast’. Mr Luna did not see Mr Reynolds go over the top of the car door.
Mr Luna said that as he was on crutches he could not immediately exit the vehicle. He said that the position of the door prevented him from seeing what had occurred, but as he managed to get himself out of the vehicle he saw Mr Reynolds lying on the ground to the left-hand side of the Uber, approximately 2 to5 metres away from the car door.
Mr Luna also marked the photograph depicted above and his evidence was consistent with Mr Reynolds’ in that their markings indicating where the accident occurred were proximate. In cross-examination Mr Luna was challenged on this point as he had provided a prior statement in November 2018 in which he had stated that the accident occurred ‘just before the Hisense Arena’. In response, Mr Luna said that in November 2018 he was not as familiar with the area as he is now.
In addition, Mr Luna said that it was only in conference with Mr Reynolds’ counsel prior to giving evidence that he had seen photographs of the area taken around the time of the accident. His evidence was that those photos refreshed his memory as to an incident that had occurred after the accident. Mr Luna’s evidence was that an unrelated car had done a U-turn from the other side of Olympic Boulevard through a gap in the median strip, close to where the accident occurred. Mr Luna recalled that a nearby marshal asked that driver to stop and referred them to police on the mistaken belief that their vehicle had struck Mr Reynolds. Mr Luna said that he intervened and clarified with police that the car was not involved in the accident. Mr Luna said that the photographs helped him better identify the location of the accident, as the gap in the median strip was adjacent to where he said the accident happened.
I considered Mr Luna to be a credible witness, who gave evidence in an earnest and co-operative manner. The apparent inconsistency in Mr Luna’s evidence as to the location of the accident was of no real significance and, in any event, was readily explained. Mr Luna was consistent in reporting that the accident occurred whilst travelling from Batman Avenue, down Olympic Boulevard, before Hisense Arena.[3] I accept that viewing the exhibited photographs allowed Mr Luna to refine, with greater specificity, his recollection of the location of the accident. I have no hesitation in accepting Mr Luna’s account as to what occurred on 20 January 2017, and in particular his interactions with Mr Patel just prior to exiting the Uber.
[3]Renamed ‘John Cain Arena’ in December 2020.
Findings of fact as to the circumstances of the accident
Mr Patel was not called to give evidence. Had he done so, he could have been questioned in respect of a number of matters including, inter alia: the location of the accident; whether he heard Mr Luna ask ’is this okay?’; if he had, what his understanding of that question was; whether he was aware of Mr Luna’s intention to exit the vehicle; whether he had turned his hazard lights or indicators on; whether he had used his mirrors to check for and saw nearby cyclists; and whether he warned Mr Luna of the hazards of opening the car door in that area.
I am not permitted to speculate as to what Mr Patel would have said, however, by application of the rule in Jones v Dunkel based on that failure I am permitted to draw an adverse inference that his evidence would not have assisted his defence.[4]
[4]Jones v Dunkel (1959) 101 CLR 298, 308, 312; see also Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 384, [63].
In Swain v Waverley Municipal Council (‘Swain’),[5] the High Court considered what could be made of a failure by a party to call evidence which was available to it. In Swain, the plaintiff suffered a catastrophic injury whilst swimming between flags at Bondi Beach when he dove into a sandbar. The plaintiff alleged the Council was negligent for placing flags in an area where there was a disguised danger, and also for failing to warn swimmers of that danger. At the trial of the proceedings, the Council did not call anyone to explain whether or not the flags could have been placed elsewhere. The jury found that the Council was negligent. That verdict was subsequently overturned in the Court of Appeal and the plaintiff then appealed to the High Court, the majority of whom allowed the appeal.
[5](2004) 220 CLR 517 (‘Swain’).
It was held that it was open for the jury to consider that it was up to the Council, and not the plaintiff, to call evidence to explain if there was a difficulty in moving the flags to avoid the sand bank, or to explain why nothing would have been gained by putting the flags in a different location. The consequence of the Council’s failure to call a witness to give such evidence was able to be relied upon by the jury in its assessment as to whether the Council had been reasonable or not in its placement of the flags on the day of this incident.
Gleeson CJ referred to the over 200-year-old decision of Blatch v Archer (‘Blatch’),[6] in which Lord Mansfield said that ‘all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’[7] In endorsing this proposition, Gleeson CJ described it as a ‘basic principle of adversarial litigation,’[8] and one that ‘accords with common sense and ordinary human experience.’[9]
[6](1774) 1 Cowp 63; 98 ER 969 (‘Blatch’).
[7]Ibid, 970.
[8]Swain (n 5), 255, [17].
[9]Ibid.
The only evidence before me was that of Mr Reynolds and Mr Luna. I found both to be credible and considered the marginal discrepancies between their oral evidence and prior statements to be of no significance. I therefore accept the substance of both Mr Reynolds’ and Mr Luna’s evidence in respect of what occurred on the day of the accident. Where appropriate, I will draw an inference from the absence of Mr Patel to give evidence, where it is open and reasonable.
Mr Reynolds urged me to find that the thrust of his question ‘is this okay?’ was that Mr Luna endeavoured to confirm with Mr Patel that it was okay to exit the vehicle at that point and indicating that it was his imminent intention to do so.
In closing written submissions, Mr Patel’s counsel submitted that this question was non-specific, and instead other example questions were posed by her to demonstrate how vague Mr Luna’s question was. It was put that Mr Luna had not asked Mr Patel:
• ‘Is this where I should get out?’
• ‘Is this a safe place to get out?’
• ‘Should I get out right here?’
• ‘Is it okay if I get out on this side?’
• ‘I’m about to get out, is that okay?’
• ‘Is it okay if I get out right now?’
• ‘Can you tell me when it’s safe for me to get out?’
• ‘Can you check whether it’s safe for me to open the door?’
• ‘I’m relying on you to check if it’s safe for me to open my door and I’m not going to check myself.’
There is no doubt that Mr Luna could have posed those more fulsome questions to Mr Patel. However, all Mr Luna said was ‘is this okay?’. Had Mr Patel been called, he could have given evidence to say that he did not understand that ‘is this okay?’ was Mr Luna’s way of asking if it was okay to exit the vehicle at that point and, if so, indicating it was his intention to do so.
Mr Patel’s counsel submitted that there was no evidence that Mr Patel knew or ought to have known that his passenger was proposing to open the passenger door at the precise moment the trip was ended through the Uber application.
Mr Patel could have given evidence as to what he understood the question to mean, but did not. In the absence of such evidence, and in accordance with the principle in Blatch,[10] I am prepared to infer that Mr Patel understood Mr Luna’s simple question in the way that Mr Reynolds’ counsel urged me to.
[10](n 6).
In closing submissions Mr Patel’s counsel also asked me to accept that there was no evidence that Mr Patel heard Mr Luna ask him ‘is this okay?’. There is no direct evidence on this as Mr Patel failed to give evidence.
Mr Patel’s counsel submitted that I could infer that Mr Luna’s question and Mr Patel swiping the Uber application to end the trip occurred at about the same time by coincidence. An alternative explanation proffered was that, upon the vehicle reaching 30 Olympic Boulevard, Mr Patel ended the trip to allow him the opportunity to pick up a new Uber passenger.
Although these are possible scenarios to explain Mr Patel’s actions, in the absence of Mr Patel giving evidence that any such scenario was his actual reason for swiping the application, I consider the inference proffered by Mr Reynolds has the greater degree of likelihood. I am satisfied that Mr Patel heard the question ‘is this okay?’ and understood that Mr Luna was asking whether it was okay to end the trip and exit the Uber at that location.
Having accepted Mr Luna’s evidence and the adverse inference arising from Mr Patel’s failure to give evidence, it is also open and reasonable to infer that having swiped the Uber application, Mr Patel knew the paid trip had ended and knew that Mr Luna would imminently exit his vehicle, and he that knew that it was not a designated stopping zone.
I reject Mr Patel’s submission that the totality of the evidence supports a finding that he was continuing the course of the journey to the Uber drop-off zone on Olympic Boulevard when the accident occurred.
As to what Mr Patel did and saw just prior to the accident, it is clear that as the driver of the vehicle, Mr Patel had access to his rear-vision mirror and side mirrors and the ability to see the presence of cyclists in the vicinity of his vehicle.
It is permissible for a Court to draw an inference as to how a person is likely to act in particular circumstances by drawing on human experience as to how people act.[11]
[11]R v AB (No. 2) (2018) 97 NSWLR 1031, 1037, [21]; see also Mathews v SPI Electricity Pty Ltd [2014] VSC 59, [33].
Considering common sense and knowledge expected of a licensed driver, in the absence of Mr Patel giving evidence, it is open and reasonable to infer in accordance with the principle in Blatch that prior to the accident, Mr Patel looked in his vehicle’s rear-vision mirror and was aware of cyclists on the bike path, including Mr Reynolds.
Further, given Mr Patel’s failure to give evidence, it is open and reasonable to infer that Mr Patel knew that Mr Luna was about to exit his vehicle, and had sufficient time to both warn Mr Luna of the dangers of doing so, and to turn on his indicator or hazard lights.
I reject Mr Patel’s submission that there was insufficient time between the end of the trip and the opening of the car door by Mr Luna for him to have taken any particular steps. An oral response to warn Mr Luna and flicking on the vehicle’s external warning lights (either the indicator or hazard lights), are two actions that could have been conducted immediately and simultaneously.
Therefore, in view of the above, I make the following factual findings:
(a) The Uber was stationary in heavy traffic on Olympic Boulevard, just past Rod Laver Arena, but before Hisense Arena. This area is shown in the photograph at [6] above.
(b) The Uber was immediately adjacent to the bike lane on the right-hand side.
(c) Mr Luna asked Mr Patel ‘is this okay?’ prior to alighting from the vehicle.
(d) Mr Patel heard the question ‘is this okay?’ and understood that Mr Luna was asking whether it was okay to end the trip and exit the Uber at that location.
(e) Mr Patel did not warn Mr Luna that he should not get out of his car at that spot, nor did he warn Mr Luna to take care to avoid any bicycles when getting out. There was sufficient time for him to do so.
(f) Mr Patel did not turn on his indicator or hazard lights. There was sufficient time for him to do so.
(g) Mr Luna soon thereafter opened the rear passenger door, and Mr Reynolds collided with it.
(h) Mr Reynolds had no prior warning that a passenger would exit the vehicle or open a car door into his path.
Why Mr Reynolds says that Mr Patel owed him a duty of care
Mr Reynolds contended that there were two aspects of the duty which Mr Patel owed to him. The first is the well-established duty owed by a driver of a car to other road users, including cyclists. Mr Reynolds alleged that Mr Patel breached this duty of care by failing to turn on his indicator or hazard lights to warn Mr Reynolds of Mr Luna’s impending exit from the vehicle.
The second aspect of Mr Patel’s duty was to caution his passenger against exiting the vehicle in an unsafe location, and/or that Mr Luna should take care of bicycles travelling in the bike lane.
Mr Reynolds alleged that Mr Patel should have foreseen the risk of injury to a passing cyclist, and in answer to the question ‘is this okay?’ from Mr Luna, he reasonably ought to have either advised against exiting there or warned Mr Luna of the danger of cyclists travelling in the bike lane. It was alleged that Mr Patel’s failure to do so was a breach of his duty of care and was a cause of Mr Reynolds’ injuries.
In closing submissions it was stated by his counsel that Mr Reynolds did not assert Mr Patel was under an obligation to control or stop Mr Luna leaving the vehicle in the location where the accident occurred. Instead, Mr Reynolds submitted that the duty to act reasonably involved the provision of a warning to Mr Luna, so as to protect not only him, but other road users — including Mr Reynolds — from a foreseeable risk of injury.
In support of his claim that such a duty was owed in this way, by a driver of a car to passing cyclists, Mr Reynolds relied on a decision from the Australian Capital Territory Supreme Court in Trentelman v Roberts & Anor (‘Trentelman’).[12]
[12][2004] ACTSC 39 (‘Trentelman’).
In that case, the plaintiff, Ms Trentelman was cycling to university, along a road which passed a high school. The first defendant, Ms Roberts, was dropping her children at that school and stopped her vehicle about eight cars back from a set of traffic lights. Ms Roberts said that she did a ‘head check’, put her left indicator on, and pulled over about 30 to 40 centimetres from the kerb and noticed that the traffic lights ahead had turned amber and then red. Ms Roberts then told her children, ‘Ok. Off you go. It’s time for school’.[13] There was a dispute as to the distance between the stationary vehicle and the kerb, Ms Trentelman contended that there was around a 1.5 metre gap. As Ms Trentelman was passing the stationary vehicle on the left-hand side, between the vehicle and the kerb, Ms Roberts’ son opened the rear passenger door of the car, Ms Trentelman’s bicycle collided with the door, and she was thrown to the ground and injured.
[13]Ibid, [7].
Master Harper proceeded on the presumption that a duty of care between driver and cyclist was self-evident.[14] In doing so, he held that the driver was liable for the cyclist’s damages, as although she did not open the passenger door, she was in charge of the vehicle, and as the only adult in the car, gave direction to her children to open the doors and get out.[15] Master Harper found that, had the driver been keeping an adequate lookout using the left wing mirrors, she would have seen the plaintiff approaching on her bicycle and would have directed her child not to open the door until the cyclist had passed. It was held that the driver’s failure to keep a proper lookout amounted to a breach of her duty of care to the cyclist.[16]
[14]Ibid, [20].
[15]Ibid, [21].
[16]Ibid, [20].
Why Mr Patel denies the duty of care as alleged
Mr Patel denied that he owed a duty to take reasonable care to control the conduct of his passenger, to warn him of the approaching bicycle, or to cause, permit, instruct, supervise, or oversee his passenger opening the door of his vehicle. In the alternative, if I were to find that Mr Patel owed such a duty to Mr Reynolds, Mr Patel submitted that the content of such a duty was ‘novel’ and I should not hold that it extends in the way Mr Reynolds alleged.
In support of Mr Patel’s submission that the common law has generally been reluctant to impose a duty to control others and that there is generally no duty to prevent a third party from harming another, I was taken to several High Court authorities, including Sutherland Shire Council v Heyman (‘Sutherland Shire’),[17] Pyrenees Shire Council v Day,[18] Modbury Triangle Shopping Centre Pty Ltd v Anzil (‘Modbury’),[19] and Stuart v Kirkland-Veenstrain (‘Stuart’).[20]
[17](1985) 157 CLR 424, t 443, 479 and 502 (‘Sutherland Shire’).
[18](1998) 192 CLR 330, 368, [101].
[19](2000) 205 CLR 254, 264, [20]; 292, [111], and 299, [140] (‘Modbury’).
[20](2009) 237 CLR 215.
In Stuart, Gummow, Hayne and Heydon JJ the reason for this general rule was explained in this way:
Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law. As Dixon J said in Smith v Leurs …“[t]he general rule is that one man is under no duty of controlling another to prevent his doing damage to a third.” It is therefore, “exceptional to find in the law a duty to control another’s actions to prevent harm to strangers.”[21]
[21]Ibid, 248, [88] (citations omitted).
In Modbury, Gleeson J summarised with approval, what Brennan J said in Sutherland Shire:[22]
the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable.[23]
[22]Sutherland Shire (n 17), 477–479.
[23]Modbury (n 19), 266, [28].
However, in Modbury, it was acknowledged that there may be some circumstances in which the relationship between the parties is such that ‘one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties.’[24] Such examples included employer and employee, and school and student. While the decision in Modbury was made in respect of protection from criminal behaviour, it was relied upon by Mr Patel in support of his submission he should not be held liable for his alleged failure to protect Mr Reynolds from Mr Luna’s actions.
[24]Ibid, 265–6, [26].
Mr Patel’s counsel submitted that reasonable foreseeability of injury to another is not sufficient to create a prima facie duty for one party to take reasonable care to ensure the avoidance of a reasonably foreseeable, but independently created risk of injury to the other, even in circumstances where assuming control poses no personal risk.[25]
[25]Sutherland Shire (n 17), 502.
Mr Patel contended that there was no authority in Australia in which a driver had been held responsible for the actions of their passenger, save for the special circumstances of Trentelman,[26] where the driver was the mother of the child passenger.
[26](n 12).
I was referred to Marten v Harrison & Anor (‘Marten’),[27] a decision of the Supreme Court of Western Australia, involving a claim by a motorcyclist who was struck by a taxi’s rear left-hand door, opened by a passenger. In that case, the driver was held not to be liable for the acts of his passenger.
[27](1988) 7 MVR 542, 545 (‘Marten’).
In Marten, a taxi had driven down a one way city street, with cars parked on both sides of the road. There were two clear lanes between the parked cars and the taxi driver stopped in the right lane to allow his passenger to exit. The passenger had been sitting in the rear seat behind the driver and moved to the middle section of the rear seat to discuss payment of the fare with the taxi driver. The passenger then moved (in a manner described by Malcom CJ as ‘sudden and swift’), across the back seat and opened the rear door on the passenger side. The door struck a motorcyclist who was overtaking the stationary taxi. The motorcyclist alleged negligence against both the driver and the passenger. The trial judge held that the driver was not negligent, but the passenger was. The motorcyclist was found contributorily negligent and the court apportioned liability to the passenger at 75% and the motorcyclist at 25%.
The trial judge found that the taxi driver was only able to see the motorcyclist in his rear-vision mirror when the passenger moved across the back seat such that there was no opportunity for the driver to intervene or take any step which would have prevented the accident from occurring. The trial judge considered that the passenger’s conduct in moving across the back seat and opening the door on ‘the more hazardous side of a vehicle in a busy street at night without any regard for oncoming traffic immediately before doing so’[28] was ‘almost reckless behaviour’.[29]
[28]Ibid, 545.
[29]Ibid, 544.
Malcolm CJ held that there was no inherent danger in the passenger alighting from the left-hand side of the taxi in this case, provided she took proper care. However, he went on say that:
Speaking generally, there may well be occasions where it would be incumbent upon a taxi driver to request passengers to alight from the side of the vehicle adjacent to the kerb, or to keep a proper lookout when alighting from the other side. There may also be cases where it would be inherently dangerous to permit a passenger alighting from the side of the vehicle opposite the nearest kerb side. Whether any such duty arises must depend upon the particular circumstances.[30]
[30]Ibid, 545.
In the course of that judgment, reference was briefly made to a decision of Megaw J in Brown v Roberts (‘Brown’).[31] That case involved a pedestrian who was walking on the footpath when struck by a van door which had been opened by a passenger. In respect of whether the driver was negligent for either failing to prevent his passenger acting carelessly in opening the door or in failing to give warning to the pedestrian, it was held that there was no evidence to support either allegation. Further, Megaw J held that there was no evidence that the driver knew, or ought to have known, that the passenger was likely to behave in the way she did. Even if the driver had seen the passenger at the moment she opened the door, there was no time to stop her or warn anyone before the accident happened.
[31][1965] 1 QB 1 (‘Brown’).
In Marten,[32] Malcom CJ considered that the taxi driver was in a similar position to the van driver in Brown. In those cases, neither driver was held to be negligent.
[32](n 27).
I understood counsel for Mr Patel to contend that, if I am to accept that there was no established duty of care, for Mr Reynolds to succeed, I would need to find a novel duty of care.
Mr Patel urged against doing so and referred me to King v Philcox (‘King’).[33] In that case, the High Court discussed what a court should consider when asked to determine for the first time if a duty of care is owed in a particular set of circumstances.
[33](2015) 255 CLR 304 (‘King’).
In King, the plaintiff made a claim for a psychiatric injury after driving past the scene of a car accident in which his brother had died. At the time, the plaintiff had driven past his brother’s involvement in the accident and consequent death were unbeknownst to him. It was noted that the High Court had not previously been asked to determine whether a duty of care was owed in those specific circumstances. In considering whether such a duty was owed, Nettle J stated:
As Deane J concluded in Jaensch, the question of whether a duty of care is owed in particular circumstances falls to be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases and, ultimately, by value judgments of matters of policy and degree. Although the concept of “proximity” that Deane J held to be the touchstone of the existence of a duty of care is no longer considered determinative, it nonetheless “gives focus to the inquiry”. It does so by directing attention towards the features of the relationships between the parties and the factual circumstances of the case, and prompting a “judicial evaluation of the factors which tend for or against a conclusion” that it is reasonable (in the sense spoken of by Gleeson CJ in Tame) for a duty of care to arise. That these considerations may be tempered or assisted by policy considerations and value judgments is not, however, an invitation to engage in “discretionary decision-making in individual cases”. Rather, it reflects the reality that, although “[r]easonableness is judged in the light of current community standards”, and the “totality of the relationship[s] between the parties” must be evaluated, it is neither possible nor desirable to state an “ultimate and permanent value” according to which the question of when a duty arises in a particular category of case may be comprehensively answered.[34]
[34]Ibid, [80] (citations omitted).
Mr Patel was indemnified by the Transport Accident Commission and in closing submissions, it was put by Mr Patel’s counsel that there were powerful policy considerations in favour of not extending the duty of care owed by drivers to road users for the acts of a passenger in the manner contended. In support of this submission, counsel provided a number of example scenarios which demonstrated that the extension of the duty, to include control of passengers, would lead to irrational results. Such examples included: a passenger attacking a driver in the course of a journey, a passenger throwing dangerous items out of a vehicle and a passenger announcing their intention to jump from a moving vehicle. It was stated that such a burden would be ‘intolerable’[35] if placed on drivers.
[35]Modbury (n 19), 266, [28] (Gleeson J).
Further, counsel for Mr Patel contended that a raft of claims could thereafter be brought by road users for the actions or inactions of passengers who were not controlled by their drivers.
Counsel for Mr Patel referred me to the decision of J Forrest J in Homsi v Homsi (‘Homsi’)[36] in support of the submission that policy considerations mitigate against extending the duty of care to include control of passengers. That case involved a claim for psychiatric injury by the mother of a deceased driver. The accident was solely due to the negligence of the deceased driver. The issue in Homsi was whether the deceased son owed his mother a duty of care.
[36](2016) 51 VR 694 (‘Homsi’).
In holding that no duty of care was owed by the deceased son to his mother, J Forrest J noted that:
… in this State, the Transport Accident Commission levies premiums and makes forward estimates on the basis of the law as it stands. Whilst of course a Court must allow for a changing legislative and common law landscape, I would be surprised if this class of claim had ever been factored into the Commission’s commercial predictions. I accept, readily, that the law must not shirk from holding that a duty exists if the factors discussed by Nettle J in King compel such a conclusion. However, questions of policy and financial implications remain relevant in this analysis.[37]
[37]Ibid, 711, [73].
Why was a duty owed, and why was it was breached?
It is well established and the parties agreed, that a driver of a vehicle owes a duty of care to other road users including cyclists. Of course, a driver of a vehicle owes a duty to their passenger(s). That duty, could, in appropriate circumstances, require a driver to warn a passenger of potential hazards to other road users.
I consider that in Brown,[38] Marten,[39] and Trentelman,[40] the respective courts appeared to accept the driver in each accident owed a duty of care to the injured plaintiff, and the scope of that duty was capable of extending to the actions of their passenger, in respect of passers-by, whether they were pedestrians as in Brown, motorcyclists as in Marten, or cyclists as in Trentelman. The different outcomes in these cases demonstrate that liability is very much dependent upon the driver’s appreciation and knowledge of the surrounding circumstances at the time of the accident.
[38](n 31).
[39](n 27).
[40](n 12).
In Brown, the court held the driver was not negligent in respect of the actions of his passenger, as there was no evidence that the driver knew or should have known that the passenger was likely to open the door. Even if the driver had seen the passenger do so, there was no time to stop her or warn anyone before the incident occurred.
In Marten, the court held that the driver was not liable for the actions of his passenger as there was no inherent danger in her exiting the vehicle, provided she took proper care.[41] Further, the judge considered that the passenger had acted almost recklessly.[42]
[41]Marten (n 27), 545.
[42]Ibid, 546.
In Trentelman, the driver was held responsible on the basis that, had she been keeping an adequate lookout, she would have seen the cyclist and told her passenger not to open the door until the cyclist had passed.[43] It was submitted that by Mr Patel’s counsel, that this case was distinguishable from the one before me as the driver was the only adult in the car. While that may be a factual difference, the passenger being a child was not the sole determinate for liability in Trentelman. It was held the driver’s failure to keep a proper lookout amounted to a breach of her duty of care to the cyclist.[44] I consider an important distinction in this case was that the driver had both the time and capacity to warn the passenger, unlike the drivers in Brown and Marten.
[43]Trentelman (n 12), [20].
[44]Ibid.
I consider the circumstances of this case, were the very type of situation, which Malcolm CJ contemplated in Marten, when he stated there may be some occasions, where it would be incumbent upon the driver to say something to the departing passenger.
I therefore reject Mr Patel’s submission that this was a novel duty of care.
Accepting there was a duty owed, the law requires a driver to act reasonably in respect of a foreseeable risk of injury to other road users.
In deciding whether there has been a breach of this duty, it is necessary to first ask whether a reasonable person in Mr Patel’s position would have foreseen that his conduct involved a risk of injury to other road users, including Mr Reynolds. If the answer to that question is yes, then it is necessary to determine what a reasonable person ‘would do by way of response to the risk’.[45]
[45](1980) 146 CLR 40.
As was stated by Mason J in Wyong Shire Council v Shirt:[46]
the 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.[47]
[46]Ibid, 47–8.
[47]Ibid, 47–8.
As to what might be expected of a reasonable driver in the context of transport accidents the majority of the High Court stated in Manley v Alexander:[48]
Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And more often than not, that will require simultaneous attention to, and consideration of, a number of different features …[49]
[48](2005) 223 ALR 228.
[49]Ibid, 231, [11].
In Hawthorne v Hillcoat,[50] the New South Wales Court of Appeal stated that the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver ‘is in a reasonable position to know’ what is happening ‘in the vicinity of the vehicle in time to take reasonable steps to react to those events’ and ‘is not a standard measured by success or perfection assessed with the wisdom of hindsight’.[51]
[50](2008) 51 MVR 523.
[51]Ibid, 533, [47].
In applying those principles to the facts of this case, I am satisfied that at the time Mr Luna asked Mr Patel if it was ‘ok’, Mr Patel whilst staying silent, took a positive step by ending the Uber ride on his phone in the location that his vehicle was in, and in doing so confirmed that it was okay for Mr Luna to exit the vehicle. At the time he did so, Mr Patel was aware of the traffic and road conditions in the area surrounding his vehicle. Mr Patel knew that his vehicle was adjacent to a bike path, and was aware of the presence of cyclists. Mr Patel knew that it was not a designated stopping zone.
As a driver, in exercising reasonable care, Mr Patel was expected to look forward through his front windscreen and also frequently look in his vehicle’s rear-vision mirror to see if there were any nearby “source of danger” such as a passing cyclist. I am satisfied that if Mr Patel had done so, in circumstances where his vehicle was in heavy traffic and moving slowly in a stop-start manner, it is reasonable to infer that he would have been aware of the cyclists who were ahead of Mr Reynolds, and would also have seen Mr Reynolds approaching.
I am satisfied that a reasonable person in such circumstances would have foreseen that a risk of injury to other road users would arise if Mr Luna exited the vehicle at that time, in that location. There was a risk of injury to Mr Luna exiting the vehicle on to a bike path. There was additionally a risk of injury to passers-by, and in particular, cyclists such as Mr Reynolds.
Having so found that the risk of injury to others was reasonably foreseeable as just set out, the next matter to consider is what would a reasonable driver do in response?
In undertaking such a consideration, the principles of common sense must prevail. It is well established that a court may rely upon common knowledge and sense to reach a conclusion as to the existence of a risk and as to the reasonable measures a defendant should have taken to subvert such a risk.[52] In Swain,[53] McHugh J stated:
In some cases, common knowledge or common sense is all that is required to prove a reasonably practicable alternative. In other words, the plaintiff may be able to discharge the evidentiary onus of establishing a practicable alternative without the benefit of technical or expert evidence.[54]
I consider this is such a case.
[52]Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, 368; Greater Shepparton City Council v Clarke (2017) 56 VR 229, 259, [108].
[53](n 5).
[54]Ibid, 535–6.
In accordance with Mr Patel’s duty to act reasonably in respect of a foreseeable risk of injury to other road users, I am satisfied that a reasonable driver would have done the following:
(a) Warned Mr Luna against exiting at that location and/or advised him to watch out for cyclists; and
(b) Put the vehicle’s indicator or warning lights on.
First, with access to mirrors as the driver of the vehicle, Mr Patel had the best vantage point to assess whether there were any sources of danger in the vicinity of his vehicle. It is reasonable to take account of the fact that left rear seat passengers have reduced visibility, with no easy access to view approaching road users in any of the vehicle’s mirrors. Upon readily observing approaching cyclists in the bike lane adjacent to the left side of the vehicle, a quick and easy measure would be for a driver to state a few words of warning or caution to a passenger or passengers exiting the vehicle, especially when exiting on the left side of the vehicle. Such an action is reasonable, especially in circumstances where the passenger has asked the driver if it was ‘ok’ to exit the vehicle.
Mr Patel did not take this reasonable step in response to a foreseeable risk of injury. I consider Mr Patel’s failure to do so constituted a breach of his duty of care to Mr Reynolds.
In the absence of this warning, Mr Luna opened the car door without being informed of the risk presented by passing cyclists. Mr Luna said that if he had been warned, he would not have opened his door. In such circumstances, I am satisfied that Mr Patel’s negligence was a cause of the accident.
Second, the purpose of indicators is to inform road users who are external to, but in the vicinity of, the vehicle, that the driver’s intention is to imminently change the position or use of the vehicle. The purpose of hazard lights is to warn nearby road users, that unexpected or interrupted use of the vehicle has occurred, or is about to occur. As a driver aware of a passenger about to exit a vehicle adjacent to a bike path, and in a reasonable position to know or appreciate the presence of cyclists passing at any given moment, turning on either indicators or warning lights would have been a prudent and reasonable measure to take. Such action was only able to be taken by Mr Patel as the driver who had sole control of the vehicle. If this simple action had been taken, it would have alerted external road users, and in particular passing cyclists, of the impending change in the vehicle’s position or use.
Mr Patel did not take this reasonable step in response to a foreseeable risk of injury. I consider Mr Patel’s failure to do so constituted a further breach of his duty of care to Mr Reynolds.
In the absence of flashing lights, by way of indicator or hazard lights, Mr Reynolds approached the vehicle without any warning that there was an imminent danger ahead of him. As a cyclist who admitted to being conscious of, and looking out for opening car doors regularly, it is probable that if such lights were on, Mr Reynolds would have observed them and prepared himself in a way that would have avoided the accident.
My finding that the scope of the duty of care owed by Mr Patel to Mr Reynolds (as a road user) extended to a duty to warn his passenger — to prevent foreseeable risk of injury to Mr Reynolds — is confined to the facts of this case. I do not accept Mr Patel’s submission that the imposition of a duty in the way I have found has an unacceptable effect of equating a legal duty with a moral obligation. Nor do I consider that this finding will ‘open the floodgates’ akin to the extreme examples posed by Mr Patel’s counsel.
Each case will turn on the surrounding circumstances, including whether there was a degree of reasonably foreseeable risk created by the acts or omissions of the driver, and if so, the reasonableness of the driver’s response to that risk. Just as in Trentelman,[55] the circumstances of this case were such that the risk of injury was created by the driver’s positioning of the vehicle, injury was foreseeable, and there was both time and capacity for the driver to take reasonable action to warn the passenger and cyclist. Such action did not require the driver to control his passenger, but simply to warn.
[55](n 12).
For the sake of completeness, I will now deal with Mr Patel’s submissions in relation to Mr Luna’s responsibility for this accident, although he is not a defendant and was not joined as a third party.
It is clear that a passenger exiting a vehicle owes a duty to other road users, including passing cyclists. In Mr Patel’s closing submissions, reference was made to Mr Luna’s ’reckless action’ of opening the car door without first checking that it was safe to do so. It was submitted that this act was ‘a new and independent cause, which was not on any view, reasonably foreseeable to’ Mr Patel.
At trial Mr Luna admitted in oral evidence that he did not look before exiting the Uber. Notwithstanding this, he had asked Mr Patel if it was ‘okay?’ and, in the absence of a warning, I do not accept Mr Luna’s failure to look was reckless.
I do not accept that Mr Luna’s failure to look before opening the door was a new and independent cause which Mr Patel could not foresee. Mr Patel had clear and easy access to rear-vision and side mirrors and Mr Luna had no such access to mirrors. Mr Patel ended the ride after Mr Luna asked him it was ‘okay?’, and was aware that Mr Luna was about to exit the vehicle and there were cyclists nearby. Given those matters, the actions of Mr Luna should have been in the reasonable contemplation of Mr Patel, who was in a position to foresee the very thing which occurred.
I accept that Mr Luna’s failure to look for cyclists was a cause of the accident, but it was not the sole cause. The other causes were Mr Patel’s failure to warn Mr Luna of the dangers of passing cyclists, and Mr Patel’s failure to engage any warning lights.
For those reasons I am satisfied that Mr Patel was negligent and that such negligence was a cause of Mr Reynolds’ injuries.
Contributory negligence
As I am satisfied that Mr Patel was negligent, it is now necessary for me to consider Mr Patel’s allegation that Mr Reynolds was contributorily negligent for the accident. It was specifically alleged that Mr Reynolds was cycling too fast given the circumstances, and that he should have reduced his speed to take account for people getting in and out of cars.
I was reminded that in Mr Reynolds’ serious injury affidavit, sworn closer in time to the accident, he stated that he had seen people getting in and out of cars ahead of him. I accept that this account is more reliable than his oral evidence at trial, when he said he could not recall that.
There is no evidence as to the actual speed Mr Reynolds was travelling, save that Mr Reynolds described it as not fast, and similar to the pace of someone running. Notwithstanding my acceptance that he was aware of the area being busy, and there were people getting in and out of cars ahead of him, I am satisfied that given he was in a designated bike lane, Mr Reynolds was travelling at a safe and reasonable speed in all the circumstances.
I do not infer from Mr Reynolds’ description of being thrown over the car door, or Mr Luna’s evidence that he saw Mr Reynolds lying on the ground 2 to 5 metres away from the Uber, that Mr Reynolds was travelling at an excessive and unsafe speed. To do so would involve speculation.
I am satisfied that in the absence of an indicator or hazard lights, or a car door being partially opened, Mr Reynolds had no reason to anticipate a door would open in to the bike path in front of him. I accept Mr Reynolds’ evidence that the door opened without warning and there was no opportunity for him to brake or swerve to avoid the accident.
In that sense Mr Reynolds was in a different position from the motorcyclist in Marten,[56] who was held to be 25% contributorily negligent. I note that in that case, the trial judge found that the motorcyclist saw the taxi slow down and stop, and the motorcyclist admitted that he had moved lanes as he anticipated that the taxi had stopped for the purpose of picking up or setting down a passenger. Accordingly it was held that ‘there was a good reason for giving the taxi a clear berth when passing it’.[57] Instead, the motorcyclist attempted to pass within a metre of the taxi, which justified the finding of contributory negligence and apportionment of responsibility for the accident. No such comparison can be made with Mr Reynolds in circumstances where he did not anticipate a passenger getting out of the vehicle, and was cycling in the designated bike lane.
[56](n 27).
[57]Ibid, 546.
I am not satisfied that Mr Reynolds failed to take account of his own safety and he should not bear any responsibility in respect of the accident. I therefore dismiss Mr Patel’s allegations of contributory negligence.
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