Vadarlis v MIMA & Ors

[2001] HCATrans 427

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S241 of 2000

B e t w e e n -

MATTHEW PAUL CUSACK

Applicant

and

SARAH MAY STAYT

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 SEPTEMBER 2001 AT 11.29 AM

Copyright in the High Court of Australia

MR R.S. TONER, SC:   If the Court please, I appear with my learned friend, MS S.D. WALSH, for the applicant.  (instructed by Orchiston Ranzetta Finney)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR A.P. QUINLIVAN, for the respondent.  (instructed by PriceWaterhouse Coopers Legal)

GLEESON CJ:   Yes, Mr Toner. 

MR TONER:   Thank you, your Honour.  Can I deal with the second aspect of the application first, namely, assume for the moment that the question is one of negligence rather than the application for leave which was made during the course of the appeal below, to seek to include a claim to battery, as well.  Prima facie, this was a case where a drunken driver ran over a drunken pedestrian. 

HAYNE J:   That is just a tad shy of a few of the facts, is it not, Mr Toner? 

MR TONER:   There are some noises off, your Honour, but at heart our starting point is that is what occurred:  that a drunken driver ran over a drunken pedestrian.  If you can draw an analogy, say, for instance, with cases like Gala v Preston, there would be no doubt - if one ignores for the moment what had occurred beforehand - that there would be a very obvious duty of care owed, and a very obvious breach of the duty of care in this case. 

GLEESON CJ:   We are all familiar with the content of the duty of care that a driver owes to a pedestrian, but to describe the relationship between the two parties in this case as simply that of driver and pedestrian involves a little bit of oversimplification, does it not? 

MR TONER:   I accept that, your Honour.  Can I come to that.  That is what raises what we say is the leave point in this case.  How do you define, if at all, the parameters of the policy questions that courts take into account when determining whether to find a duty of care?  So that, in this case, there is a clear distinction to be drawn from the common example, namely, where there is a passenger in a car being driven by a drunk, where the passenger knows that the person is drunk and voluntarily gets into the car and goes with them.  Or, alternatively, a circumstance like Gala v Preston, where the people who are in the car are using it in and about an unlawful purpose.  Compared to this case, where there is no suggestion of joint illegality as between the applicant and the respondent, what is ‑ ‑ ‑

HAYNE J:   But the difficulty you face with a negligence claim is that you are trying to force conduct found to be intentional by the trial judge into a negligence bottle. 

MR TONER:   Well, we say the negligence is incorporated in the intentional conduct. 

HAYNE J:   Well, the imperial march has really gone a long way if it has taken over trespass. 

MR TONER:   Except for this, your Honour, it was ostensibly available to the Court of Appeal to say that what happened to the applicant in this case was the result of the negligence – in terms of determining a duty of care ‑ by the respondent.  That question, of course, was considered by Justice Heydon in his decision when he found that, in fact, even if there was a duty of care owed in this particular case, he found that what the respondent did was what a reasonably prudent driver would do in the circumstances.  So the question was addressed – and we say, with respect to them, incorrectly – in terms of the existence of a duty of care, negligence, rather than recategorising it as an intentional tort, trespass to the person.  It was available to be categorised that way. 

We say the error into which the court fell was saying that there was no duty of care in this case because of what, we submit, were extraneous policy reasons which ought not properly to have been taken into account to determine whether a duty of care in fact existed in the circumstances here.  We say that arises this way:  that the illegal conduct of the applicant in this case preceded the driving; when it came to the point at which the respondent ran the applicant down, there was a clear choice, namely, she was there in front of the applicant and she just drove the car forward and ran him over.  At that time, the applicant was entirely at the mercy of the respondent.  She ran him down.  He was standing in front of the car, and she ran him over.  We say that there may well be questions of contributory negligence involved, or that there may be questions of volenti involved in this case, but neither of those propositions go to whether a duty of care existed in the circumstances.  Now ‑ ‑ ‑

HAYNE J:   If she had struck him with a club, could you force that set of facts into a negligence framework? 

MR TONER:   No. 

HAYNE J:   What is different?  She drove the car deliberately into him.  Police have charged it as an assault with a weapon, to wit, a motor car. 

MR TONER:   Because it is governed by the provisions of the Motor Accidents Act.  That is what governs this particular piece of litigation.  It was brought under the Motor Accidents Act, and the definitions that bring it within the Motor Accidents Act fall within that proposition.  I think that is in section 69 of the Act – I do not know if we included that, but I have a copy of it, your Honour.  Rather than the Act, they are the prints.  They are extracts from the computer renditions.  So the operative provision of section 69 is that the liability accrues: 

an award of damages which relates to the death or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. 

We say that that encompasses what the respondent did in this particular case, and can be properly so categorised. 

GLEESON CJ:   Just remind us where these events occurred. 

MR TONER:   In a car park of a club, your Honour. 

GLEESON CJ:   It would not have made any difference to your case, would it, if they had occurred in a private garage? 

MR TONER:   Other than the operation of the legislation, no, your Honour.  Or the reach of the legislation.  That is the case.  But we say that the way that section 69 operates attracts the operation of the Act to the facts of this particular case.  Therefore, questions of consent, we say, are not proper considerations to take into account to determine whether there is a duty of care.  The reason we say that is because questions of volenti and the like incorporate the very notions of consent.  The doctrinal foundation of volenti has changed because of the amendments to the legislation which brought volenti – Motor Accidents Act – not as a complete defence as it once was, but treats it broadly in the same way that contributory negligence has been dealt with since the 1965 Act. 

So we say, firstly, it is appropriate and proper, doctrinally, to bring this set of facts within the operation of the Motor Accidents Act, under section 69, and that in determining whether the duty of care – which is obviously owed, prima facie, in this case – has been breached, it would seem to be clear from the circumstances of what happened.  In other words, she ran him over.  The only question that then remains:  whether there are policy questions which ought to disentitle this man from recovering under the Act.  So that the question that arises for this Court, then, is what is the scope of the policy considerations that can properly taken into account to determine whether the applicant, or a person such as the applicant, is disentitled for recovery? 

GLEESON CJ:   She actually ran him over in the course of trying to make an escape from an attack he was making on her. 

MR TONER:   No, your Honour.  An attack had happened prior to this.  He kicked the rear window of the car in before she drove off.  She drove around the car park, came back into another section of the car park, reversed into the wall, drove towards him, and likely hit him.  He stood in front of the car and waved his arms around and screamed abuse at her, urging her to,  “Go on, go on, do it, drive me over”.  Perhaps more colourfully expressed than that.  And she did.  That is the sequence of events.  It was not in the course of an assault by him on her, or on the car, for that matter.  The learned trial judge, in fact, does not characterise it as an escape from him.  Her conclusion was that it was either done deliberately, perhaps as an act of revenge against him for what he had done previously to her, not only in the car park but perhaps in the arguments that they had had in the club earlier that night.  So, our submission is that here is a case where the flavour of illegality is being used to disentitle this man from recovery. 

GLEESON CJ:   Well, you have two problems.  If you look at page 178 of the application book, the finding of the Court of Appeal was that, in the circumstances: 

the relationship of the parties to which the plaintiff had substantially contributed was not one in which the defendant owed the plaintiff any duty of care. 

And secondly: 

Even if there were a duty of care the circumstances were such as to bring about a radical reduction in its normal content.  It has not been shown that the defendant’s behaviour was less than reasonably prudent given the conditions in which she was placed. 

MR TONER:   Yes, your Honour. 

GLEESON CJ:   Now, in order to succeed in an appeal, you would have to displace both aspects of that decision ‑ ‑ ‑

MR TONER:   I accept that, your Honour. 

GLEESON CJ:    ‑ ‑ ‑ the second of which raises no question of principle at all. 

MR TONER:   I suppose it raises this proposition, as to whether it was concordant with the findings made by her Honour at first instance.  We say that it is not so concordant, and it is inconsistent, what is more, with the balance of Justice Heydon’s judgment.  To characterise what he accepted as the findings of the trial judge as to the nature of the driving of the respondent at that time as being, to put it in a positive sense: 

reasonably prudent, given the conditions in which –

it reads “he”, but she was placed – it seems difficult to accept, on this basis, your Honour, that she was drunk, in control of a motor car, with the man standing in front of her. 

GLEESON CJ:   From whom she was trying to escape. 

MR TONER:   That was not the finding, with respect, of the judge at first instance, your Honour.  Her conclusion was that that was a possibility, but another possibility was that she intentionally ran over him as an act of revenge.  She specifically rejected the respondent’s evidence, when the respondent gave evidence to the effect that she had not intentionally run over him.  That was specifically rejected by her Honour during the course of her judgment. 

GLEESON CJ:   According to the judgment of the Court of Appeal, she was in an “intoxicated and terrified condition”. 

MR TONER:   Could I take you to ‑ ‑ ‑

GLEESON CJ:   Responding, by her behaviour, to threats he was making to her. 

MR TONER:   Your Honour, the evidence was that at the time he was run over by the respondent, the applicant was standing in front of the motor car saying to her, “Go on, run me over” or words to that effect.  The evidence does not suggest any threat at that stage being made by the applicant to the respondent.  The thrust of that circumstance seems to be that that constituted some form of consent on the part of the applicant to have this woman run him over in a motor car.  When one reviews the evidence, and analyses both the judgment at first instance and that in the Court of Appeal, it seems that the sequence must necessarily be that the assault and the malicious damage to property had taken place first; there had been some driving around the car park on the respondent’s part; that she stopped in front of the applicant; and his conduct at that stage, rather than being seen as threatening, was perceived and judged to be egging her on, encouraging her to run him over, rather than as a threat. 

It is in those circumstances, when she does run him over, that we say that she owed him a duty of care not to do just that.  In other words, not to accept the invitation to run him over.  He cannot consent to that sort of violence against himself.  So that it was not as if she was trying to escape from an immediate threat of violence to her.  It was not an “agony of the moment” case.  There was no suggestion at that time that there was any immediate threat to her, and there is no suggestion that she could otherwise have driven the vehicle so as not to have run this man over.  Now, in all of those circumstances, she is not acting out of necessity to escape from any immediate threat to her, but she just runs him over – a man standing in front of her.  She is driving a motor car, drunk, in control. 

His knowledge or perceptions of her state of sobriety or agitation do not, we say, derogate from what her duty of care was to him, namely, she was the person in control of the situation, she was the driver of the motor car, and she was the one who could have either driven around him or not driven forward at all.  That was the circumstance.  We say that the policy principles that have been applied by the Court of Appeal to preclude this man from recovery are not a proper application of policy considerations.  For instance, could I take the Court to appeal book page 177, about line 40, where Justice Heydon says: 

It does not seem just that that section of the community which owns cars and pays premiums for compulsory third party insurance should have to bear the consequences of the plaintiff’s conduct. 

Now, that seems to fly directly in the face of the authority of this Court and Cook v Cook, where there was a rejection of similar policy considerations that had been propounded by the English Court of Appeal.  We say, in applying that as a policy consideration so that this man ought be refused (a) the duty of care and, secondly, the right to recover, is not a proper policy consideration to take into account to determine the existence of a duty of care in this case.  Cook v Cook stands for that proposition. 

Beyond all of that, your Honour, there seems to be an arbitrariness about this style of case around the country, so that there are some cases where a person can be, broadly, the knowing passenger of a very drunken driver in a car and still succeed, either with contributory negligence or none.  This particular case, Cusack, has been applied, we say, somewhat peculiarly ‑ or referred to somewhat peculiarly, and on our list we have referred to Berryman v Joslyn, which is an unreported decision of the New South Wales Court of Appeal.  We merely draw it to this Court’s attention because of the way that this particular case was characterised by the Court of Appeal at paragraph 22, where I think Justice Meagher ‑ ‑ ‑

GLEESON CJ:   Just a moment, Mr Toner.  Yes. 

MR TONER:   Paragraph 22, the second part of the paragraph, where his Honour says: 

This is not a case where the object of the parties’ action was in itself illegal –

like bank robbery.  His Honour refers to the fact that:

there is no criminal offence involved in eating at McDonalds, and certainly none involved in driving home.  Nor was it a case where Mr Berryman, knowing Miss Joslyn was drunk, goaded her into breaking the law –

and he refers to Cusack v Stayt.  Justice Meagher, of course, is one of the judges who sat in the Court of Appeal in this particular case. 

That is the way this case was characterised in that matter I just referred this Court to, and we submit to this Court that that is not a proper policy consideration to take into account to determine the existence of a duty of care in circumstances such as this.  Just because Mr Cusack behaved boorishly and violently of itself is not disentitling of a court properly finding the existence of a duty of care.  It was not as though the conduct was connected to the activity which gives rise to the duty.  In other words, it was not part of the driving.  It was not like Gala v Preston.  It was not part of the inherent activity which involved the breach of what otherwise would be a duty of care, such as in Gala v Preston.  It was divorced from it. 

The reason why this man did not recover is because of a policy consideration adopted by the court that his behaviour had been such that he ought not recover.  In other words, his violent conduct towards the respondent prior to her driving was a basis whereby the court found that there ought not be found to be a duty of care.  We say that that is a dangerous precedent because it departs substantially from the long line of cases where illegality has been a question, namely, that there was a direct nexus between the illegality and the activity where the duty of care arose. 

In this case, there is no such nexus, in circumstances where she was not fleeing from him, she was responding, so it is found, to his goading.  She drove him over.  He was standing in front of the car.  She chose to do that.  She was in control of the situation.  He was badly injured.  She could have either not driven him over or, alternatively, have steered around him.  Those were things which were peculiarly within the control of the respondent in this case, and the reason why Mr Cusack failed was because of the preceding conduct, rather than what was involved at that moment – at that time when the driving took place, and for reasons found and adopted by both the learned trial judge and the Court of Appeal in this case.  We say

that they are inappropriate ways to employ policy so as to disentitle the applicant in this case and find no duty of care.  If the Court pleases. 

GLEESON CJ:   Thank you, Mr Toner.  We do not need to hear you, Mr Hislop.

The Court is of the view that there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave and the application is refused with costs.

AT 11.50 AM THE MATTER WAS CONCLUDED