Tina Maree Mason v John David Dickason
[2006] ACTSC 102
TINA MAREE MASON v JOHN DAVID DICKASON
& INSURANCE AUSTRALIA LTD ABN 11 000 016 722 t/as NRMA INSURANCE
[2006] ACTSC 102 (14 September 2006)
EX TEMPORE JUDGMENT
NEGLIGENCE – motor vehicle – passenger applying handbrake without warning, causing car to veer off road into stone wall – duty of care to driver
INSURANCE – compulsory third party policy – whether defendant entitled to indemnity – whether defendant a “driver” under the policy – test to be applied
WORDS AND PHRASES – “driver”, “drives”
Motor Traffic Act 1936
Motor Vehicle (Third Party Insurance) Regulations
Civil Law (Wrongs) Act 2002
Harriton v Stephens (2006) HCA 15
State Government Insurance Commission v Kovacs 12 MVR 267
Abdallah v Newton (1998) 28 MVR 364
Shortland County Council v Government Insurance Officeof New South Wales (1973) 2 NSWLR 257
WP Smith Pty Ltd v State Government Insurance Commission (1983) 33 SASR 20
Ricketts v Laws (1988) 14 NSWLR 311
State Government Insurance Commission v Sweeney (1989) 52 SASR 139
Gassner v Frost (1940) SASR 295
Peter Francis Affleck (1992) 65 A Crim R 96
Wallace v Major (1946) 1 KB 473
R v MacDonagh (1974) 1 QB 448
Hampson v Martin (1981) 2 NSWLR 782
Caughey v Spacek 1968 VR 600
McGrath v Cooper (1976) VR 535
MacNaughten v Garland (1979) QR 240
Tink v Francis (1983) 2 VR 17
Ames v McCloud [1969] S.C. 1
Anderson v Territory Insurance Office [1999] NTSC 21
No. SC 336 of 2004
Judge: Master Harper
Supreme Court of the ACT
Date: 14 September 2006
IN THE SUPREME COURT OF THE )
) No. SC 336 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:TINA MAREE MASON
Plaintiff
AND:JOHN DAVID DICKASON
Defendant
AND:INSURANCE AUSTRALIA LTD ABN 11 000 016 722
t/as NRMA INSURANCE
Third Party
ORDER
Judge: Master Harper
Date: 14 September 2006
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff against the defendant for damages to be assessed, subject to a reduction of 10% for contributory negligence.
The defendant pay the plaintiff’s costs of the action.
Judgment be entered for the defendant against the third party.
The action be listed for directions on 20 October 2006.
This is an action for damages for personal injury arising out of an incident which occurred on 13 November 1999 at about 10 pm on Barry Drive near its intersection with Macarthur Avenue at Black Mountain.
The plaintiff’s claim is that at the time of the incident she was driving her Toyota Corolla in a north or north-westerly direction on Barry Drive, from the city towards Belconnen. The defendant, John David Dickason was beside her in the passenger seat. He applied the handbrake of the vehicle without warning causing it to leave the road and collide with a stone wall.
The negligence alleged against the defendant was particularised as:
(a) applying the handbrake of the motor vehicle when the defendant knew or ought to have known that it was unsafe to do so;
(b) applying the handbrake of the motor vehicle in a manner which caused the plaintiff to lose control of the motor vehicle;
(c) driving the motor vehicle in a manner which was dangerous to the plaintiff;
(d) failing to ensure that the defendant was seated in the driver’s seat with access to the brakes, accelerator and steering wheel when he took control of the motor vehicle;
(e) interfering with the control of the motor vehicle;
(f) removing control of the motor vehicle from the plaintiff when the defendant knew or ought to have known that it was unsafe to do so; and
(g) res ipsa loquitur.
The defendant made some admissions and did not admit other assertions in the statement of claim. In addition, he pleaded “agony of the moment” and also pleaded that the plaintiff was guilty of contributory negligence, particulars of which were:
(a) driving the motor vehicle at an excessive speed or at a speed which was excessive in the circumstances, including use by the plaintiff of marijuana prior to driving and emotional upset on the part of the plaintiff with the defendant;
(b) driving the motor vehicle in an erratic manner;
(c) failing to stop or slow down when requested to do so;
(d) failing to have any or any due regard for her own safety;
(e) failing to have any or any due regard for the emotional state of the defendant in the circumstances.
Initially the authorised insurer of the plaintiff’s vehicle assumed the conduct of the proceedings on behalf of the defendant, filing an appearance and a defence. After some months, however, the insurer notified the defendant that indemnity was declined and the defendant arranged his own representation.
The defendant, through his new solicitors, joined the insurer as third party. The third party defends the proceedings against it on the basis that the defendant is not a person who was entitled to be indemnified under the policy at the time of the incident.
The policy at that time was in statutory form, complying with section 54 of the Motor Traffic Act 1936 which required as a condition of registration of the motor vehicle that it be covered by a policy issued by an authorised insurer. The policy was to insure the owner of the motor vehicle and “any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, in respect of bodily injury to any person caused by or arising out of the use of the motor vehicle”.
It is not in issue in this case that the incident in question gave rise to bodily injury to a person caused by or arising out of the use of the insured motor vehicle. The sole issue between the defendant and the third party is whether the defendant in the circumstances of the incident can be found to come within the wording “any other person who at any time drives the motor vehicle”.
There was in force at the time a notional third party policy in the form of Form A in Schedule 2 to the Motor Vehicle (Third Party Insurance) Regulations. That notional policy was relevantly in identical wording to section 54 of the Act.
In February 2006 I made a consent order that the issue between the defendant and the third party be tried separately, prior to the trial of the action between the plaintiff and the defendant. I made that order without looking closely at its effect. When the action was listed for the hearing of that issue on 7 June 2006, it became apparent to me that the agreed statement of facts upon which the court was asked to try the third party issue separately was likely to prove inadequate. It was a short statement of fact and I was conscious of injunctions of superior courts against deciding legal issues on agreed facts, where there would subsequently be a trial which might lead to factual findings which were not identical to the agreed facts.
In particular I had regard to observations by Kirby J in a then very recent decision of the High Court of Australia, Harriton v Stephens (2006) HCA 15, in which his Honour said the following:
34. A threshold consideration which must be borne in mind in deciding this appeal is the fact that the appellant has not yet had a trial. As such the facts available to this court are brief and unelaborated. While the parties doubtless had in mind cost-saving and tactical considerations in adopting the abbreviated course they did, it is often important in cases concerning the tort of negligence that appellate courts have the benefit of comprehensive findings based on full evidence. Because of the location of the burden of proof a paucity of evidence usually works to the detriment of the party bringing the action.
35. Especially in novel claims asserting new legal obligations the applicable common law tends to grow out of a full understanding of the facts. To decide the present appeal on abbreviated agreed facts risks inflicting an injustice on the appellant because the colour and content of the obligations relied upon may not be proved with sufficient force because of the brevity of the factual premises upon which the claim must be built.
Having regard to those considerations I declined to try the third party issue on the agreed facts and directed that the action be set down for hearing, so that the facts upon which the third party proceeding was based could be found by the court. Thus the case has come before the court this week for hearing of the liability issues between the plaintiff and the defendant, and between the defendant and the third party. The court has not at this stage heard evidence about the extent of the plaintiff’s injuries, nor any other evidence relevant to the assessment of damages. Should it become necessary that issue will need to be determined at a later time.
The plaintiff and the defendant both gave oral evidence. Some additional short evidence was given by the defendant’s daughter. The plaintiff and defendant were both cross-examined to some effect as to differences between their oral evidence in 2006 and records of interview which had been conducted with each of them by police officers in the month of the incident. The defendant was also cross-examined on other written statements which he had made in the year after the incident.
The defendant agrees that his memory is not entirely reliable. It seems to me that the answers given by the plaintiff and the defendant to the police in those records of interview are likely to be consistent with their recollection at the time they were given and therefore inherently more likely to be accurate then their recollection today.
There is not a great deal of factual difference between them, though there were some differences on the day. The plaintiff was interviewed at the city police station on the 26 November 1999, within two weeks of the accident, by Detective Constable Macauley of the Australian Federal Police.
She was asked about what occurred on the night leading up to and including the accident. She replied as follows:
I had a work party for the RAAF base because my catering manager was leaving and John was at bowls on Saturday and when he came home from bowls he was quite intoxicated but kept trying to make out he wasn’t as drunk as he was and we got into the car to leave - to go to, I think it’s called Happys, in Civic and we were driving along the Parkway and he kept being verbal and then I was arguing with him because he lied about how much he’d drunk. And I said if you lie about stupid pathetic things like that how can I believe you over real issues. So he kept trying to pull the handbrake on along the Parkway while I was driving in to Civic and then he tried to open the car door and jump out of the car while I was driving towards Civic. I pulled over to the left-hand side of the road and actually stopped the car and grabbed his hands and asked him to stop. This - because it was my night out with my friends which is usually the problem anyway. We got to the restaurant and none of the other staff were there as yet so we were just waiting. Then everyone got there and he was quite - he was just being rude, making rude comments at the table, and it wasn’t very pleasant with me with my staff friends. So after we had our dinner he went and sat in the car. So I just got in the car without saying goodbye to my friends and we left. We were driving along …It’s Barry Drive isn’t it?… driving along from the restaurant near Gus’s up along that street, I don’t know what it’s called. Got up to the traffic lights and turned right onto Northbourne Avenue and started to go left onto Barry Drive. I was travelling around 70 about then. We got into another argument about his drinking and he said I make him angry and I caused him to feel inadequate and he continued to be verbal. We went past one lot of traffic lights, stopped at the second ones and just as I was slowing right down to stop they went green again. The third set of lights near the CSIRO were just changing halfway through and I floored it and I would have been doing 80-85 then. I overtook a car in the left-hand lane. I was in the right-hand lane. I was going up, and as I was going up he kept pushing his hands over towards the wheel - over towards the handbrake and saying ‘stop the car I want to get out of the car, let me out of the car’ and I said ‘no’ and then he pulled the handbrake on. As he started to pull the handbrake on I moved from the right lane to the left lane and all I remember is the back of the car sliding.
The plaintiff was asked whether the defendant had had anything to drink at the restaurant and she replied:
No, because the argument on the way in was about how he knew it was my night out and we normally take it in turns as drivers. If he’s got something on with his friends, I’m the sober driver and if I’ve got something on with my friends, he’s the sober driver, and I was having a go at him for ruining the night. So when we got to the restaurant he just drank lime sodas.
She was then asked, “So you were of the impression that you would have to drive home?” She answered, “Yes.” She said this was due to the defendant’s intoxication at that time. She was asked about the defendant having been rude at dinner and she said:
One of the other chefs goes to the bowling club as well and he was asking him about the prawn morning the week later and he turned around and said, ‘Oh I probably won’t be allowed to go ’cause she doesn’t like me going playing bowls and just mouthing off’.
When asked if she had had anything to drink at the restaurant, she said she had had one Bacardi and Coke in a seven glass and then a further two Bacardi and Cokes in a tumbler. She had not had anything to drink prior to going out to dinner and those three drinks were all she had to drink the whole night.
She was asked how fast she thought she was going at the time she went through the third traffic lights (I find that these were the lights at the junction of Clunies Ross Street and Barry Drive). She answered, “I think I was doing over 80. I reckon I was close to 100 when I went through that traffic light to be quite honest”. She was asked, “How fast do you think you were going at the time of the accident?”, and she replied, “I dropped speed from the time he started putting his hand on the handbrake from at least - I was doing 100 - down to 80-85 by the time he actually lifted the handbrake”.
It was put to her, “As you were travelling down Barry Drive would you agree that you probably weren’t concentrating on your driving as much as you would normally?”, and she replied, “That’s correct. Because I was worried with watching his hands and trying to watch the road and just screaming at each other.”
She was asked, “What do you believe the cause of the accident to be?”, and she said “Him pulling the handbrake on”. She was asked, “When he’d applied the handbrake was it in a jerk sort of motion or can you sort of describe how he pulled it on? Did he ease it on?” She answered:
No it was fast, it was really, really fast because the car just went sideways and just kept going sideways and that’s what I remember. It just went so quick and I didn’t know whether to touch the brakes or not touch the brakes.
She was then asked, “Leading up to the collision the conversation you were having with John, what was it about? Do you remember that?” She replied:
I said to him if he thought I was going to go to his nephew’s wedding with him or to his sister’s house for Christmas he could bloody forget it because I was not going to be embarrassed and sit at another table with him with the way he behaved in front of my friends, and that was about the time that it happened.
She was asked, “Did he ask you at any time on the way out of Civic to pull over and let him out?”, and she answered, “Several times, that was more past the CSIRO. It was between the CSIRO and the Black Mountain Tower bit”.
She was asked, “What was your intention at that time?”, and she said, “I just wanted to go home, I just wanted to go home and I thought ten minutes at home and he’ll be asleep”.
The defendant was also interviewed by Detective Constable Macauley, on 13 and 17 November 1999. During the first interview, two days after the accident, the defendant was asked, “At the time of the collision can you tell me what speed she [the plaintiff] was travelling at?”. He said, “I would say approximately 80 kilometres an hour”.
Asked to go back through the events of the evening, he said:
We went to dinner at Sammy’s restaurant in Civic and for a fair while we ate and then she said we’ll leave. We hopped in the car and we were going home. She was yelling and screaming at me and I said ‘Stop, let me out here, just let me out, stop, let me out’. She kept carrying on. She wouldn’t stop. I said ‘Stop here’ and I put the handbrake on and I didn’t expect what happened to happen.
He was asked, “You asked her to stop?” He replied, “So she could go out of town and go back to where she wanted to be, not with me, and I just lost my temper and I put the handbrake on”. He was asked, “When you pulled the handbrake on how hard did you pull it on?” He answered, “I just pulled it on, I didn’t expect the car to go out of control”.
He was asked, “What happened when you pulled the handbrake on?” He answered, “The car went out of control. I looked around and we hit a rock wall. I used to be a driving instructor for God’s sake. I pulled handbrakes on kids all the time”.
He was asked whether he had had anything to drink. He said, “I had beers to drink today”. When asked about the plaintiff, he said “She had one Bacardi”.
He was asked, “What can you tell us about the collision? When you pulled on the handbrake what was the immediate response of the car?” He replied, “Just we were going up the road and we were off the road”.
He was asked, “Were you aware if the back brakes locked at all or the front brakes locked at all?” He said, “It certainly sounded like the back brakes locked. I don’t know. I didn’t. It was so quick. I did it, it was my fault. I take all responsibility for it, it was a stupid thing to do, I did it.”
He was then asked a little later, “Earlier on you said that you had a fair bit to drink today. What time did you start drinking?” He replied, “After lawn bowls, probably about 12 o’clock”. Asked “And what did you drink?”, he said, “Well I was playing a game, a championship game, so I had about six stubbies of light ice, so light Hahn. After the game old mates had come over to see me from the other side of town and I had probably four schooners I think, maybe five”. Asked over what period, he answered “6 hours”. He was then asked what he had had to drink at the restaurant that night. He said, “Two schooners of lime and soda, nothing alcoholic.”
The defendant was interviewed again by Detective Constable Macauley on 17 November 1999. He expanded on his earlier answers but the information was generally consistent with his earlier interview.
At one point he said:
I had asked Tina to stop and she didn’t. I wanted to get out of the car. Being a driving instructor I had used the handbrake on numerous occasions to save myself in situations where it needed to happen, and I assumed that the car would pull up in a straight line. The road was dry, the road was straight. I just assumed I would slow her down and the car would stop. I just wanted to get out of the car. When she starts going off at me she’s not very nice to be with.
He was asked whether he had taken that action before. He said he had with students when he had been a driving instructor. When he had done it before the car had skidded to a stop. He was asked, “Did you consider the possible consequences of your actions before taking the action of pulling the handbrake on?” He replied, “I didn’t consider anything, I just wanted the car to stop, I wanted to be out of the car. If I thought that was going to happen I would never have done it. I’m not an idiot, but I was stupid that night.”
He was asked, “Do you think your consumption of alcohol had anything to do with your train of thought or your thinking process that night?” He replied, “It’s quite possible”. Later, when asked again for his opinion as to the cause of the collision, he said, “Me pulling the handbrake on”.
He was asked about his level of intoxication at the time of the incident. He said, “I was still in reasonable control with most of my faculties I think. I wasn’t staggering around or slurring my speech or anything”. He was asked, “So how would you describe your level of intoxication?” He said “Probably moderate”.
I generally accept that the answers given by the plaintiff and the defendant to the police in those interviews were truthful, with this exception: I accept the defendant’s evidence that in an endeavour to protect the plaintiff from possible prosecution he told the police that she was travelling within the 80 kilometre speed limit for the area where the accident happened. Otherwise it seems to me that the excerpts I have quoted are likely to be accurate and truthful.
I find that a police officer attended the scene of the accident within twenty-four hours, at a time when the car was still in position off the side of the road, and measured tyre burn marks on the road. I find that the marks were 34.5 metres in length for the driver’s side wheels of the car and 22.7 metres in length for the passenger side wheels of the car. I accept that the handbrake has effect on the drum brakes on the rear wheels of the car. I therefore find that those burn marks were made by the locked rear wheels of the car after the handbrake was applied.
For most of their distance the burn marks appear to be parallel to the direction of the road. They then curve sharply to the left and off the road to a position where the car was when the police attended the scene of the accident. I accept that a car travelling at 80 to 100 km/h would take more than one but less two seconds to travel the distance of the longer of those skid marks.
The plaintiff conceded in her oral evidence that she was a user of marijuana and that on the day of the accident at about 3.00 pm she had smoked some. There is no evidence which would enable me to find that at the time of the accident the plaintiff was affected to any degree by that marijuana.
The plaintiff was taken by ambulance to Calvary Hospital, where she was subjected to a blood test. The test showed that the alcohol in her system was less than the prescribed concentration of 0.05%.
The plaintiff’s solicitors engaged a consulting forensic engineer, Mr John Jamieson, whose report was in evidence in the proceedings between the plaintiff and the defendant. I do not find Mr Jamieson’s report of particular assistance in determining the issues in this case. I note that, on the material provided to him, he found nothing inconsistent with the allegation that the reason the car came into contact with a stone wall off the road was the passenger’s sudden application of the handbrake. I do not find it necessary to deal with Mr Jamieson’s opinion evidence at any greater length than that.
I find as a fact that during the time of the drive from the restaurant in Civic to the point where the car left the road the defendant was still affected to a mild to moderate degree by the beer he had drunk earlier in the day.
The plaintiff was probably mildly affected by the three Bacardis, which may have been only half Bacardis, she had had at the restaurant. Alcohol may have contributed to her driving in excess of the speed limit and perhaps less carefully than she might have done if she had been unaffected.
The plaintiff was in an emotional state, brought about by her reaction to the defendant having come home late and intoxicated from his day at the bowling club, when she expected that he would come home in time and sober, to accompany her to a dinner out.
There was other evidence given by the defendant, and the plaintiff did not generally disagree with it, from which I find that the plaintiff was a person who on occasions, and subject to some provocation, would lose her temper and behave in a volatile and sometimes aggressive manner. This was well known to the defendant. It can be seen as the background to the arguing between the plaintiff and the defendant in the period leading up to the collision.
The defendant gave oral evidence that he was motivated in pulling on the handbrake by a genuine concern for his safety, and indeed his life. He did not say anything about that concern to the police in his interviews after the accident. He sought to explain this inconsistency by saying that he had not mentioned it because of his wish to protect the plaintiff, that is, for the same reason that he understated the plaintiff’s speed. It seems to me that it would have been unnecessary for him not to mention this concern. It does not seem to me that it was a factor in his mind at the time of the interview. It is something which is in his mind now through a process of reconstruction.
I am inclined to accept his frank admission when first interviewed that in the course of the argument (bearing in mind that the plaintiff had said she would not be coming to his nephew’s wedding or going to his sister’s place with him for Christmas) he lost his temper and pulled on the handbrake.
A person in the position of the defendant sitting in the passenger seat of a moving vehicle owes a relevant duty of care to a driver in the position of the plaintiff not to pull the handbrake on suddenly.
I accept that he had no intention of causing an accident. I accept that his intention was to bring the vehicle to a stop. It was, however, a reasonably foreseeable consequence of pulling on the handbrake as he did that control over the vehicle would be lost, and that the vehicle would leave the road, collide with a wall and cause injury as happened.
I should make brief mention of a submission by counsel for the defendant that I should exculpate the defendant because of a defence which is sometimes described as the “agony of the moment” principle.
There is authority for the proposition that in some circumstances a defendant can escape liability where he acted reasonably when faced with a sudden emergency. An example is found in State Government Insurance Commission v Kovacs 12 MVR 267, a decision of the Full Court of the Supreme Court of South Australia. The defendant had braked suddenly to avoid hitting a dog. He missed the dog but the plaintiff, a front seat passenger, claimed damages for soft tissue injury to the neck and back. The court at first instance found in her favour but the Full Court, constituted by Jacobs, Cox and Matheson JJ, found that the defendant had behaved reasonably when confronted with the emergency and in those circumstances had not been guilty of any conduct amounting to negligence.
Another example is found in Abdallah v Newton (1998) 28 MVR 364, a decision of the New South Wales Court of Appeal constituted by Meagher, Beazley and Stein JJA. In that case, the defendant driver was attacked violently by a person armed with karate sticks, who had already knocked the rear view mirror from the side of the car. In his haste to drive away, the driver collided with a car in front of him, which his assailant had been driving, and in doing so caused some injury to a passenger in that car. The Court of Appeal found that there was no negligence on those facts: the reasonableness of the defendant’s conduct is to be judged according to the circumstances of the case, and the actions of the driver accorded with the conduct of a reasonably prudent person.
There have been other decisions which illustrate the principle. On the factual findings that I have made in this case, there was no emergency of that kind confronting the defendant and such a defence cannot be made out.
I find that the defendant owed a duty of care to the plaintiff, and that the defendant committed a breach of that duty. There has been little evidence about damage, but there is evidence that the plaintiff suffered some loss of consciousness and injury and was taken by ambulance to Calvary Hospital. That is sufficient to satisfy me that the plaintiff suffered some damage. Thus the tort of negligence is made out.
The defendant pleads contributory negligence on the part of the plaintiff. I am satisfied that the plaintiff was at the relevant time driving at a speed in excess of the speed limit. The other allegations of contributory negligence are not made out. It is true that but for the defendant’s act in pulling on the handbrake the plaintiff’s speed of itself would not have resulted in any injury to her. However that is generally true of conduct found to amount to contributory negligence. At a lower speed, it is much less likely that pulling on the handbrake would have caused the vehicle to leave the road and collide with a wall. I also find that at a lower speed any impact is likely to have caused less damage. In those circumstances it seems to me that the plaintiff contributed to some degree to her own injuries. Her contribution is adequately reflected by a reduction of 10%.
I find that the defendant was negligent and the plaintiff guilty of contributory negligence such that in any judgment in her favour, her damages are to be reduced by 10%.
The third party claim
That brings me to the claim by the defendant against the third party. It is common ground that there was in existence at the time of the accident a policy of insurance issued by the third party in respect of the vehicle being driven by the plaintiff. The defendant asserts that he is entitled to be indemnified under that policy. To succeed he needs to satisfy the court that he was relevantly “driving” the vehicle at the time the plaintiff was injured.
At first blush, it might seem obvious that a person sitting in the driver’s seat, as the plaintiff was, was the driver of the vehicle, and that a person sitting in the seat of the defendant was a passenger, and was not the driver. But the issue at law is not so simple. There is no decision of this Court directly on the point. Nor have counsel been able to identify a case of any other court which is precisely on the point, although there are a number cases where the question of whether or not a person was relevantly the driver of a motor vehicle has been determined. Some of those have been dual insurance cases where, effectively, a workers’ compensation insurer has been seeking contribution to a judgment from a motor vehicle third party insurer. Others have been cases involving prosecution of a person for a traffic offence, an element of which is that the accused was the driver of a motor vehicle at the time of the offence.
It will be necessary for me to summarise and go through some of those cases. Shortland County Council v The Government Insurance Officeof New South Wales (1973) 2 NSWLR 257 was a decision of the New South Wales Court of Appeal constituted by Jacobs P, Hardie and Bowen JJA. Two people employed by the Shortland County Council were in a council garage where one of them had been recharging the battery of a motor vehicle owned by the council. The other man was the usual driver of the vehicle. To test the new battery, the man who was usually the driver was asked by the other employee to put his arm through the window of the vehicle and turn the ignition on. He did so. The vehicle was in gear and it moved forward, striking and injuring the man in front. The Court of Appeal held that at the relevant time the man who put his arm in the window and turned the ignition on was the driver of the motor vehicle. It was not relevant that he was not in the driver’s seat, did not intend to drive the vehicle, and did not steer it.
In WP Smith Pty Ltd v State Government Insurance Commission (1983) 33 SASR 20, Millhouse J of the Supreme Court of South Australia found that an employee was relevantly driving a vehicle in similar circumstances to the previous case. A woman had taken her car to an automotive electrician’s workshop and left it parked in the street. An employee of the firm came out to have a look at it, put his hand in the window and turned on the ignition. The car, which the woman had left in gear, jumped forward and struck her. The wording of the policy was identical to that in the present case. The employee was found to be relevantly the driver of the vehicle so as to create a liability in the third party insurer.
Ricketts v Laws (1988) 14 NSWLR 311 was a decision of the Court of Appeal of New South Wales constituted by Kirby P, Hope and Clarke JJA. A driving instructor who was in the passenger seat of a vehicle was held, for the purposes of a third party insurance policy, to be a driver, in circumstances where there was an accident during a driving lesson. The court said that in a case of that kind, it was possible to have two drivers. It was possible for both the learner driver and the instructor to be drivers entitled to indemnity under a third party insurance policy. The learned President referred to the importance of looking at the purpose of the legislation in construing the policy. His Honour said (at p315):
Generally speaking, [the purpose] can be said to have been to ensure, by a system of compulsory third party insurance, that persons injured out of the inescapably dangerous social activity of driving motor vehicles would have a fund from which to recover damages in the event that, by the ordinary law, they could bring home liability to an owner or a driver of such a motor vehicle.
His Honour then went onto refer to the facts of the case and said:
In this sense, a conclusion that the instructor may also be a driver will achieve the general object of the Act. A conclusion that she was not frustrates the achievement of that general object, at least as I have defined it.
That brings me to a case submitted by council for the defendant to be as close in facts as can be found to the present case: State Government Insurance Commission v Sweeney (1989) 52 SASR 139, a decision of the Full Court of the Supreme Court of South Australia (Legoe, Millhouse and Prior JJ). In that case, the driver of a vehicle had been injured when the passenger grabbed and manipulated the steering wheel of the vehicle causing a collision with a pole. The trial judge found that on the facts the passenger was entitled to indemnity under the third party policy, having relevantly driven the motor vehicle within the meaning of the policy. Both the driver and the passenger had been drinking. The passenger, who was more affected by liquor than the driver, saw an open shop and called on the driver to stop because he wanted a packet of cigarettes. The driver refused, whereupon the passenger grabbed the steering wheel and turned it. The vehicle swerved. The plaintiff tried to correct the swerve. The passenger did not let go of the wheel but continued to push it from side to side. The driver then took his hands off the wheel thinking that matters might be soonest mended if he did not struggle with the passenger for control of the steering wheel. The driver applied the brakes but a collision occurred before he was able to bring the vehicle to a stop.
The judge at first instance made the point that normally a person who drives a vehicle sits in the driver’s seat and exercises control of the vehicle by operating the various devices which dictate its propulsion and steering. However the courts have been called upon from time to time to consider cases where other conditions obtained, both for the purposes of penal legislation and to settle questions of insurance. The trial judge quoted the observations of Napier J in the earlier case of Gassner v Frost (1940) SASR 295:
I think Parliament has provided for the insurance of motor vehicles with a view to ensuring that everybody who is injured by the use of a vehicle shall recover the fruits of any judgment that he obtains.
The Full Court dismissed the appeal and found that the passenger was relevantly driving the vehicle in doing what he did and was entitled to be indemnified under the policy. The presiding judge, Legoe J, set out a number of propositions which he said were established by authority. One was that it is a matter of fact whether a motor vehicle is being driven by a particular person or not. The second was that the purpose and intention of the third party insurance legislation warranted a liberal interpretation. The third was that a vehicle might have more than one driver at the same time. A fourth was that many of the authorities had arisen out of prosecutions for offences. As his Honour noted, in the instant case the Full Court was not concerned with interpretation of provisions imposing penal sanctions but with civil liability sounding in money by way of indemnity. The Court would not interpret such provisions more strictly than penal sanctions would be interpreted. The final proposition which his Honour set out was that neither the mere sitting in the driver’s seat nor the mere intention of driving the vehicle can be the conclusive test as to whether in fact a person is the driver or not. His Honour said:
It is the control of the vehicle to the relevant degree which has universally been adopted as the criterion for determining whether in fact a person was a driver.
Counsel for the defendant also referred me to the matter of Peter Francis Affleck (1992) 65 A Crim R 96, a decision of Smart J in the Supreme Court of New South Wales. In unusual circumstances, his Honour found that it was possible for three people in a vehicle all to be driving at the same time. This was a case where one person was working the pedals, another the gears, and the third, lying across the other two, was holding the steering wheel. The one who was prosecuted was the man in the driver’s seat working the pedals. His Honour found that that man was the driver for the purposes of a negligent driving prosecution.
Counsel for the third party directed the attention of the Court to a number of decisions. Wallace v Major (1946) 1 KB 473 was a decision of Goddard LCJ sitting with Humphries and Singleton JJ in the King’s Bench Division. A defendant to a traffic prosecution had been behind the steering wheel of a vehicle with its engine off, being towed by another vehicle. The defendant was in a position to use the steering wheel and the brakes but not otherwise to affect the course of the vehicle. The court found that he was not a driver in that he was not driving a mechanically propelled vehicle as was required for a successful prosecution. The Lord Chief Justice said (at p 477):
We have to remember that this is a penal Act and we are bound to construe it strictly and ought not to stretch the language in any way. In my judgment it is impossible to say that a person who is merely steering a vehicle which is being drawn by another vehicle is driving that vehicle. No doubt he is controlling it to some extent; no doubt he is doing many things which a driver would have to do; but before he can be convicted of being a person driving a motor car in a dangerous manner, it must, it seems to me, be shown that he is at least driving it; that is to say, making the vehicle go.
In R v MacDonagh (1974) 1 QB 448, the Court of Appeal consisting of Lord Widgery CJ, Lord Scarman, Thesiger, Bristowe and May JJ expressed some doubt about whether the correct conclusion had been reached in the previous decision of Wallace v Major. In MacDonagh the defendant appears to have been particularly unfortunate. He was disqualified from driving. His car was blocking the road and he was told by a policeman to move it. He did so by standing outside the car and pushing against the door pillar with his shoulder, reaching in with one hand to steer it. He was convicted at first instance of driving while disqualified.
The Court of Appeal allowed the appeal and set aside the conviction, holding that for the purposes of the relevant legislation the word “drive” was not so wide as to include activities which could not be said to be driving a motor vehicle in any ordinary sense of the word in English. There was a distinction between driving a car and pushing it, so that no ordinary meaning of “drive” could extend to a person who was not in the car but had both feet on the road, and was making no use of the controls apart from an occasional adjustment of the steering wheel. Lord Widgery CJ said at page 451:
The Act does not define the word “drive” and in its simplest meaning we think that it refers to a person using the driver’s controls for the purpose of directing the movement of the vehicle. The essence of driving is the use of the driver’s controls in order to direct the movement, however that movement is produced.
His Lordship went on to say:
Although the word “drive” must be given a wide meaning, the courts must be alert to see that the net is not thrown so widely that it includes activities which cannot be said to be driving a motor vehicle in any ordinary sense of that word in the English language. Unless this is done, absurdity may result by requiring the obtaining of a driving licence and third party insurance in circumstances which cannot have been contemplated by Parliament.
His Lordship made it clear that this was a borderline case, noting that a different conclusion might well have been open to the tribunal of fact if the accused had had one foot in the car in order to make more effective use of the controls.
Counsel for the third party places particular reliance on a decision of Foster J in the Supreme Court of New South Wales, Hampson v Martin (1981) 2 NSWLR 782, in which the ratio has been extracted as:
A person cannot drive a motor vehicle [within the meaning of the relevant section of the legislation] unless in addition to having control over the steering and braking systems of the vehicle he also has control over its means of propulsion. Accordingly, a person who is steering or guiding a motor vehicle under tow does not drive that vehicle within the meaning of the section.
This was a stated case from a magistrate dealing with a prosecution of the respondent for driving a motor vehicle with the prescribed concentration of alcohol present in his blood. The magistrate had dismissed the charge, but stated a case for the Supreme Court. Foster J ultimately agreed with the magistrate and dismissed an appeal by the prosecution. In doing so, his Honour reviewed the case law, including cases to which I have already made reference. In addition, he referred to the case of Caughey v Spacek 1968 VR 600, which was a similar towing case, in which Winneke CJ had held that the respondent was not relevantly driving the car for the purpose of the prosecution.
Foster J quoted from Caughey v Spacek a passage in which Winneke CJ referred to “the robust common sense expressed by the Lord Chief Justice in Wallace v Major.” Winneke CJ went on to find that the respondent’s control over the operation and movement of the car was severely limited in that he possessed no power to set it in motion or otherwise operate its propulsive mechanism. He had a limited power to control its direction, but only to the extent permitted by a 12 foot tow rope. He also had power to decrease its speed by the brakes or to decline to allow its speed to increase, but again only to the extent permitted by the rope. He had no power to determine the route to be taken or the ultimate destination of the car, which were in the control of the driver of the towing car. The car was being propelled not by its own motive power but solely by the force exerted by the tow.
In Hampson v Martin, Foster J referred to another Victorian case, McGrath v Cooper (1976) VR 535, in which Gillard J had dealt with a similar set of facts, this time subsequent to the British decision in MacDonagh. In McGrath v Cooper, the person said to be the driver was sitting in the driver’s seat and steering, in circumstances where he was being pushed from behind by another vehicle. Gillard J held that he was not “driving” within the meaning of the relevant legislation, holding specifically that driving necessarily involves control of the propulsion of the vehicle. Gillard J held to that effect despite the decision in MacDonagh, which had been cited in argument. Hih Honour held at page 538:
The underlying notion of driving is the control over propulsion. The word “driving” implies an urging forward. The whole concept is that the person must have control of the force that pushes the vehicle backwards or forwards. He must have control of the mode of moving the vehicle. The means of propulsion and their control are necessary attributes to driving.
The Supreme Court of Queensland came to a similar decision in MacNaughten v Garland (1979) QR 240, preferring to follow Wallace v Major and the Victorian cases in preference to MacDonagh in circumstances where the person said to be driving was riding a motorcycle which was broken down and under tow by another vehicle. The Court held that in those circumstances the rider was not a driver for the purpose of a prosecution for unlicensed driving.
In Hampson v Martin, Foster J went to the Oxford Dictionary and looked up the meanings of “drive”, “direct” and “steer”. His Honour said (at p 796) that he had satisfied himself that the word “drive”, whilst it can be use in a multitude of situations, always conveys the application of motive force by the person doing the driving. His Honour concluded that a person cannot drive a motor vehicle unless, in addition to having control of the steering and braking systems of the vehicle, he also has control over its means of propulsion.
The decision of Foster J in Hampson v Martin was followed by the Full Court of the Supreme Court of Victoria the following year in Tink v Francis (1983) 2 VR 17, a decision of Young CJ, McInerney and Southwell JJ. The Court there was dealing together with three unconnected matters, the first being Tink v Francis itself, a towing case where the person in the driver’s seat of the vehicle being towed was charged with driving with an excessive blood alcohol content. The Full Court found that she was not driving for the purposes of the section which created that offence. The second case was similar: the defendant was found also not to have been driving. In the third case the driver had been driving down a hill when the engine cut out. The driver had continued to steer the car while it coasted and eventually stopped, and had been convicted by a magistrate of careless driving during the period while it was coasting without the engine on. The Full Court held that in those circumstance the defendant was driving.
Young CJ referred (at p 19) to the fact that in his Honour’s opinion an essential element of driving was being more or less in control of the propulsive force. His Honour said:
The ordinary meaning to be attached to the word “drive” when applied to a motor car should, I think, embrace the notion of some control of the propulsive force which if operating will cause the car to move.
Their Honours expressly made mention of Foster’s J decision in Hampson v Martin and took the view that that case had been correctly decided, McInerney J saying:
I do not think that it suffices that the person charged with having driven a motor vehicle should have had control over the steering or braking systems of the vehicle or of both. I think he must also have control over its means of propulsion.
Southwell J, coming to the same conclusion, made reference to the decision of Ames v McCloud [1969] S.C. 1, a Scottish case in which Clyde LJG had held that the question of whether the defendant was driving or not depended on whether the defendant was in a substantial sense controlling the movement and direction of the car. His Honour noted that this test had been adopted by the Court of Appeal in McDonagh, and thus could be taken to have been approved by the Victorian Full Court.
Counsel for the third party also referred the court to Anderson v Territory Insurance Office [1999] NTSC 21, a decision of Bailey J in the Supreme Court of the Northern Territory Motor Accidents (Compensation) Appeal Tribunal. The facts of that case were very different to the present case. A passenger had climbed out of a moving utility on to its roof and, perhaps not surprisingly, fallen off and been struck by the utility. It was not suggested in that case that the passenger in some way became the driver, but his Honour referred obiter in paragraph 66 of the judgment to the possible application of the Northern Territory Criminal Code to a person sitting in the passenger seat for a driving offence. His Honour said:
For example, a vehicle passenger might be found guilty of an offence contrary to s154 of the Criminal Code where the relevant act was, say, suddenly and without warning to apply the handbrake forcefully, grab the steering wheel or force the gear lever into reverse of a fast moving vehicle.
His Honour noted that it is a principle of the Northern Territory Compensation Scheme that a driver who commits a dangerous act is excluded from compensation, and expressed the view that the legislation would be likely to be interpreted so as to exclude a passenger who performed a dangerous act (such as in his Honour’s example of applying the handbrake forcefully) from entitlement to compensation.
As I said earlier, there is no decision of this Court which assists me in determining the meaning of the word “drives” in section 54 of the Motor Traffic Act. I note that many of the decisions I have summarised arose out of prosecutions for traffic offences where it was an essential ingredient of the offence to be proved by the prosecution that the defendant was relevantly driving the motor vehicle at the time of the offence. Those cases have come to their conclusions applying, among other things, the strict tests of construction that apply to criminal legislation.
A number of the other cases, which I can generally refer to as the dual insurance cases, start from another position, the principle that third party insurance legislation is generally seen as beneficial legislation and should be interpreted more expansively. That was undoubtedly the case in 1999 when the plaintiff suffered these injuries, although since then there has been some change of political opinion as to the extent to which legislation of this kind should be interpreted beneficially. That change has been reflected in amendments to legislation in most jurisdictions of Australia, including the comparatively mild Civil Law (Wrongs) Act 2002 of this Territory. But at the time of this injury in 1999 this was all in the future. The third party insurance scheme was still one of beneficial intent, where legislation is to be interpreted more expansively.
I referred during submissions to the fact that the Motor Traffic Act 1936 dealt generally with matters relating to motor traffic; including licensing of drivers, registration of motor vehicles, offence provisions relating to traffic lights, speed limits, and parking. Many such matters were governed in interstate legislation by regulations rather than by Act. When I raised this, I said that it might be significant that the Motor Traffic Act also included, in Part V, the provisions in relation to compulsory insurance of motor vehicles which were generally found in separate Acts in State legislation. The significance of the observation was that the words “drive” and “driver” are used in the Territory Act in relation to both third party insurance and offences by drivers.
I am urged by counsel for the third party to the position that the words should be interpreted so as to have the same meaning wherever used in the Act. Whilst that has an inviting consistency and neatness about it, it does seem to me that Part V of the Act in relation to insurance should be interpreted consistently with similar legislation in other parts of Australia, rather than consistently with the offence provisions of the Motor Traffic Act
In the present case, a plaintiff has suffered injury caused by or arising out of the use of a motor vehicle, through the negligence of the defendant, a passenger in the vehicle, who caused her injuries by his sudden application of a handbrake. It may be said, I think, as a matter of policy, that the Court should lean towards an interpretation which would provide the plaintiff with access to a fund to satisfy her award of damages, rather than to an interpretation which might leave her with an empty judgment against the defendant as an individual. It should also lean towards an interpretation which would provide the defendant with indemnity from a substantial insurance fund rather than from his own resources.
Having said that, it seems to me that the decision which is most nearly on point is the decision of the Full Court of the Supreme Court of South Australia in SGIC v Sweeney, the case in which the passenger grabbed the steering wheel. I am not satisfied that the present case is materially distinguishable from that decision. It was argued that the person sitting in the driver’s seat in Sweeney let go of the wheel, thereby handing control by default to the passenger, whereas in the present case events happened so quickly that the plaintiff lost control of the vehicle involuntarily. That does not seem to me to be a matter of significance in the present circumstances.
Where there is no authority binding upon me it is preferable that I follow the Full Court of an Australian Supreme Court where there is a decision which relates to the construction of the word “drives” in third party insurance legislation, as opposed to penal legislation. For that reason I propose to follow SGIC v Sweeney. I find that the defendant in pulling on the handbrake assumed control of the vehicle. It is relevant that one aspect of control can be the reduction of speed, as well as putting in motion or continuing with motion or increasing speed. To the extent that reduction of speed can constitute control, the defendant can be said, for a barely measurable period of time, to have exercised control over the vehicle. Certainly it was entirely his action which caused the vehicle to run off the road, subject as I have said to the plaintiff’s minor contribution.
In those circumstances, it seems to me that the defendant should be found to have been a person who drove the motor vehicle for that brief period prior to its leaving the road and striking the wall. The defendant is therefore entitled to be indemnified under the third party policy.
There is to be judgment for the plaintiff against the defendant for damages to be assessed, subject to a reduction of 10% for contributory negligence. The defendant is to pay the plaintiff’s costs of the action. Judgment will be entered for the defendant against the third party on the third party claim.
The third party should pay the costs of the defendant in relation to the third party claim. An issue was raised at the conclusion of the hearing as to the basis of such a costs order. I will refrain from making a formal order, but grant liberty to apply. I direct that in the event of a dispute that the Court needs to resolve, the parties are to lodge written submissions. I direct that the action be listed for directions as to its further conduct on Friday 20 October 2006.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date:13 October 2006
Counsel for the plaintiff: Mr J R Sainty
Solicitors for the plaintiff: Blumers
Counsel for the defendant: Mr C J Ryan
Solicitors for the defendant: Lander & Company
Counsel for the third party: Mr M A McDonogh
Solicitors for the third party: Phillips Fox
Date of hearing: 11, 12, 13, 14 September 2006
Date of judgment: 14 September 2006.
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