‘Agony of the moment’ or just poor choices? Driver found negligent when intoxicated person fell from bonnet of moving car

08 May 2023

An intoxicated youth who threw herself on a bonnet of a car (which proceeded to accelerate causing the youth to fall and sustain injuries) defeats CTP insurer’s appeal in the NSW Court of Appeal, which sought to argue that such conduct precluded her from receiving compensation.

In issue

  • The appellant, Brooke Catlin, appealed the judgment of the primary judge, ADCJ Curtis, who found that she was negligent under the Civil Liability Act 2002 (NSW) (‘CLA’) for a motor vehicle accident, which caused the respondent to sustain severe injuries. The appellant also argued that the finding of 25% contributory negligence was inadequate and submitted that 80%-90% was more appropriate.

The background

On 14 April 2017 at about 1am, a group of youths (aged in their late teens to early 20s) were congregating in Jack Evans Park, Coolangatta after drinking sessions in nearby pubs. The respondent was in one group. 16-year old Rebecca Ribbons was part of another group which was accused of stealing a handbag. Aggressive outbursts prompted Ms Ribbons to call her friend the appellant to pick her and her friends up as soon as possible to get away from the park.

The 17-year old appellant (who was on her provisional license at the time) arrived about 10 minutes later driving her mother’s Holden Astra. Ms Ribbons and her friends instantly entered the vehicle. The appellant began to drive slowly but suddenly stopped when the respondent 'bolted at full speed' from the park and then jumped head first onto the bonnet of the stationary Astra which cracked its windscreen. The respondent turned herself around and sat in the centre of the bonnet with her back against the windscreen and her legs out in front.

The appellant and her friends including Ms Ribbons were becoming fearful as other people from the park approached the appellant’s vehicle. The appellant then decided to accelerate in a westerly direction along Boundary Street. She slowed to turn right at a roundabout to ascend Hill Street, which she believed was far enough from the other people for her to stop and get the respondent off before driving home. As the vehicle slowed for the turn, the respondent attempted to dismount by straightening her legs out over the driver’s side however the respondent slid and fell backwards. She landed on her lower back and struck the back of her head heavily on the roadway and sustained severe injuries.

The respondent made a claim for damages for her injuries against the appellant’s CTP insurer. Liability was denied.

The decision at trial

ADCJ Curtis gave judgment for the respondent and found that the appellant breached the duty of care she owed to the respondent and that the respondent’s injuries were caused by the appellant’s negligence. His Honour rejected the defences under the common law and pursuant to the CLA raised by the appellant.

Specifically, His Honour rejected the appellant’s 'agony of the moment' defence and concluded that about 50 metres away from the park (and 20 metres short of the roundabout intersection) the appellant then 'knew that the [respondent] was trying to get off the bonnet and had ample opportunity to stop the car momentarily to allow this to happen.'

His Honour also referred to the emergency 000 call made by the appellant and her friends immediately after the accident and found that the tone of the call was not consistent with escaping a situation of grave danger.

His Honour accepted that that the respondent’s act of striking and damaging the windshield constituted the offences of reckless damage to property and assault. However, he noted that sitting on the bonnet of a stationary car was not illegal and indeed not unreasonable since the occupants were suspected of having stolen a handbag.

Essentially, His Honour found that the appellant was negligent in failing to permit the respondent to alight before putting the car in motion. Without providing express reasons for the basis of the deduction, His Honour also made a deduction of 25% for contributory negligence.

The issues on appeal

The appellant challenged several findings of fact and submitted that the trial judge ought to have found that the defences were made out. The appellant also contended that the trial judge’s reasons (particularly regarding the deduction for contributory negligence) were insufficient.

The decision on appeal

The Court of Appeal (Adamson JA, Meagher and Mitchelmore JJA agreeing) dismissed the appeal and held that:

  1. None of the challenges to the factual findings were made out.
  2. There was no error in the trial judge’s conclusion that it was not incongruous to find that the appellant owed a duty of care as the respondent’s illegal conduct (in striking and damaging the windshield) had ceased by the time the appellant drove with the respondent on her bonnet. As Adamson JA noted at [163],'[t]he fact was that, as soon as the appellant put the Astra in motion, she was in breach of the duty of care she owed to the respondent and exposed her to a foreseeable risk of harm. The prospect of that harm not ensuing once the vehicle was in motion diminished with every second of acceleration.'
  3. The appellant bore the onus of proving that she acted reasonably in the 'agony of the moment' which was not made out when, as the trial judge found, the appellant had ample opportunity to momentarily stop the car and allow the respondent to get off. The emergency 000 call also did not support the appellant’s contention that she was escaping from grave danger.
  4. The appellant’s conduct in driving at 1.20am with three passengers under 25 years of age was in breach of the conditions of her provisional license. This breach of her license conditions constituted an offence, which caused the respondent’s injuries. Accordingly, section 54(2) of the CLA applied and made section 54(1) inapplicable.
  5. The judicial obligation to give reasons can be fulfilled in different ways. Having regard to the structure of the judgment of the trial judge, the Court of Appeal held that the reasons were sufficient, except for the issue of contributory negligence. However, as Adamson JA noted at [190] that 'the respondent may have otherwise sustained injury by falling off the bonnet (while the car was stationary) ought to have been within the respondent’s reasonable contemplation.', and since a re-trial was not sought by the appellant, the Court upheld the finding of 25% contributory negligence.

Implications for you

This case was informative in exploring the various defences under the CLA and in common law that might apply to CTP claims, especially where issues of unlawful offences and contributory negligence are involved. It is particularly informative of the principles regarding the ‘agony of the moment’ defence which may arise in CTP and public liability claims.

Catlin v Draper [2023] NSWCA 49

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