Allen v Chadwick [2015] HCATrans 154 (19 June 2015)

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Allen v Chadwick [2015] HCATrans 154 (19 June 2015)

Last Updated: 22 June 2015

[2015] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A1 of 2015

B e t w e e n -

ALEX ALLEN

Applicant

and

DANIELLE LOUISE CHADWICK

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 19 JUNE 2015, AT 11.18 AM

Copyright in the High Court of Australia

MR M.C. LIVESEY, QC: If the Court pleases, I appear with MR B.J. DOYLE, for the applicant. (instructed by Hunt & Hunt Solicitors)

MR R.J. WHITINGTON, QC: I appear with my learned friends, MS J.M. ATKINS and MR B.J. KRUPKA, for the respondent. (instructed by Mellor Olsson Lawyers)

FRENCH CJ: Yes, Mr Livesey.

MR LIVESEY: If the Court pleases. On the reasons of the majority, Justices Gray and Nicholson, no finding of contributory negligence was made despite the engagement of the statutory presumptions of contributory negligence, notwithstanding that the plaintiff agreed to continue travelling as a passenger with a driver whom she had seen steadily drinking alcohol, mixed spirits, for between 10 and 12 hours and whose blood alcohol content was later estimated to be 0.229 per cent, and notwithstanding her failure to wear a seatbelt as was required by the Australian Road Rules.

The background facts are not in serious dispute, but if I could invite the Court’s attention to the map that appears at application book 319? The accident occurred at around 2.00 am on a Sunday morning. On the previous Saturday, the plaintiff and her partner, the defendant, had left Adelaide, and by the Saturday afternoon, they had arrived at Port Victoria, entering through the Maitland Road, and driving through the town to the motel which was on the eastern edge near the beach – it is a very small town. As one sees from the next page, at 321, the motel is encircled and the place where the journey commenced – that is to say, where the plaintiff got out and where the defendant commenced to drive when the plaintiff got back in as a passenger, is circled as where the journey commenced. As it turned out, that is very close to the spot where the accident ultimately happened when the defendant left the roadway and the car hit a tree.

The journey taken by the defendant can be seen on the next page, 322. At the top right, the journey starts. The defendant drove into the township along Main Street – and there was evidence to show that Main Street was well lit along both sides – did a U-turn through a median strip, spinning the tyres as he did so, came out from whence he had come, and then lost control.

The evidence showed that earlier that afternoon, the plaintiff had seen the defendant playing with the children, falling off a seesaw, and just before the journey commenced, the journey that the learned trial judge described as “puzzling”, at 2.00 am, the men were making so much noise and were so boisterous that the plaintiff was concerned that they would be kicked out of the motel. The three adults left the three children locked in one of the two motel rooms that were booked and went on this, as it is described, “puzzling” drive.

FRENCH CJ: Now, as to the first complaint – I think we are familiar with the facts, but as to the first complaint which relates to the section 47(1)(a)(iii) contributory negligence criterion, am I right in saying that your complaint is that an objective test should have been and was not applied?

MR LIVESEY: It may be debated what is meant by “subjective and objective”, but under the principles described and accepted by Joslyn v Berryman, that is so. The objectively reasonable sober person would never have become confused or disoriented, as both the trial judge and the Full Court found, in this very small town. What has occurred is that the majority has fastened upon the use of the words “injured person” in the exception to 47, and one can see that at application book 305. Subsection (2):

The injured person may rebut the presumption by establishing . . .

(b) the injured person could not reasonably be expected to have avoided the risk.

KEANE J: What if the injured person was drunk too?

MR LIVESEY: Joslyn v Berryman tells us that the injured person must be assumed to be sober. That, indeed, is the effect of section 44 of the Act, which puts both a plaintiff and a defendant on the same basis. That is essentially what has been ignored by both the trial judge and the Full Court. Notwithstanding that this legislation came in at around the time of the Ipp reform, notwithstanding this Court’s decision in Joslyn v Berryman, the Full Court have taken a major step back and imposed an approach which allows one to have regard to the idiosyncrasies and the personal characteristics of the particular plaintiff concerned, doing exactly that which Justice McHugh deprecated in Joslyn’s Case.

Our friends suggest that this has no national importance. With great respect, it does. It is clear that in the ACT, New South Wales and the Northern Territory, very similar words apply, following the Ipp reform. It is clear also that on the very persuasively articulated reasons of the Chief Justice, if one starts not with the plaintiff’s decision-making, but the decision-making of the postulated “reasonable person”, and all of the knowledge that that person should have acquired in the 12 hours preceding that “puzzling” trip, it would have been immediately obvious that the short trip 500 metres from here to the Sheraton at 2.00 am represented very little danger indeed, compared with getting back into the motor car with the drunk defendant who was remonstrating with the plaintiff and insisting on driving, notwithstanding Mr Martlew, the other adult, was telling the defendant that he ought not drive.

In those circumstances, there was a clear error of principle by both the trial judge and the Full Court, and the correction of that principle has important implications. If corrected, a different result clearly obtains because one then, starting with the “reasonable person” postulated in Joslyn, starts with the rational decision-making that the Chief Justice articulates in his reasons at paragraphs 49 and following. As his Honour explains at paragraph 34, the approach by the Full Court in this case, Justices Gray and Nicholson, really sets on its head the considered established approach to contributory negligence.

FRENCH CJ: Now, just looking at page 234 and paragraph 111, when one is applying an objective test, one is doing so, allowing for the slipperiness of that concept, in the circumstances of the particular case. There are some findings of fact about that here, are there not?

MR LIVESEY: With great respect, the starting point must be 104 and section 44, which is the provision I referred to a moment ago in answer to Justice Keane, that puts a plaintiff on the same basis as a defendant. Then one moves to 109, and at the foot of 233:

the foray to obtain cigarettes had been abandoned and the decision had been made to return to the hotel. Notwithstanding that Ms Chadwick was disoriented –

and as one moves through the page that your Honour the Chief Justice has invited me to consider, one sees time and again the Full Court returning to the decision-making and the idiosyncrasies of Ms Chadwick. For example, at 111:

Ms Chadwick was faced with an unexpected and confusing situation . . . She was concerned about the three young children - - -

FRENCH CJ: Well, hang on. That is a statement about the surrounding circumstances, not about her state of mind.

MR LIVESEY: With respect, confusing - - -

FRENCH CJ: That is how it is expressed.

MR LIVESEY: When one looks at the facts and the approach of the Full Court, it is inescapable that what the Full Court has done is start the analysis from the standpoint of this plaintiff. One sees also that reflected five lines down –

Although aware of lights in the distance, the source of those lights was unclear.

A moment’s glance at the maps show that the lights at Wilson Terrace, 200 metres away, and the lights on both sides down Main Street leading to the motel 500 metres away – a moment’s thought at the time by the “reasonable person” - - -

FRENCH CJ: This is a finding of fact which you contest, is it?

MR LIVESEY: It is. It is one where the starting point is the plaintiff’s evidence – the plaintiff’s evidence was found in many respects to be deceitful by the trial judge – and where the appropriate construct requires one to push to one side what the plaintiff was thinking and start with the “reasonable person” in the objectively proved circumstances.

Then we have Ms Chadwick remonstrating with Mr Allen, and the aggressive response. Then at the foot of the page at 113, reference to the vulnerability, “helplessness” and “panic” as being things which, it is said, were “readily understandable” in Ms Chadwick. By contrast, if one looks at the Chief Justice’s reasons at application book 216, the Chief Justice makes it clear - - -

FRENCH CJ: “Panic” and “helplessness” are excluded from the menu of possible states of mind of a reasonable person?

MR LIVESEY: With great respect, it is more fundamental than that. One starts not with the particular plaintiff, but with the “reasonable person” and moves from there. As the Chief Justice points out at the top of that page, in contrast to what the trial judge did – 49:

An enquiry . . . which commences from the perspective of her personal “vulnerability” . . .

A clearer picture . . . greater fidelity to the –

legislation is adhered to if one starts with that construct, the construct of the common law and the construct of the Ipp reform. It is that which the Full Court have overlooked.

As the Chief Justice points out, as one moves through 50, then down to 51, disorientation forms no part of that if one looks at what the “reasonable person” would have known and seen at the time. Of course, it is important to recognise that the “puzzling” decision to drive was for a few minutes. She had driven – that is to say, the plaintiff had driven – to the point at which the car was turned, and it was then that she got out, having turned the car around when she could see the lights. She, with great respect, as a reasonable person, must have known, should have known, where she was.

Could I move to the second point? The second point concerns – I am sorry, before I leave that, the Full Court majority referred to “the agony of the moment”. The agony of the moment has no place in circumstances – in order to get back to the children, it is said – where it was the plaintiff who embarked on this decision at the outset. Self-generated panic does not qualify as agony of the moment.

The second issue concerns the seatbelt presumption. It is said that that was rebutted by the operation of the old common law doctrine of the unforeseen act of a stranger – the defence, as it is sometimes described in South Australia, of Norcock v Bowey. That raises, in my submission, another important question of principle about the nature and scope of the common law defence as applicable to the Australian Road Rules.

On the Full Court’s reasons, a defence of traditionally narrow operation as being available across a great many circumstances simply where one could describe the conduct of the person in breach as “reasonable” or “not negligent” – that has important ramifications across a large range of road traffic offences. In my submission, the Full Court was clearly wrong to find that this defence - - -

FRENCH CJ: So, is there a kind of, on your contention, absolute viability through contributory negligence, or absolute exposure to a finding of contributory negligence if you get into a car and the seatbelt does not work? You are a passenger, you are not the driver.

MR LIVESEY: That calls into play impossibility defences and other similar common law defences, but not the “act of a stranger” defence. Our point is, even assuming the availability of similar common law defences under the Australian Road Rules, on these facts, as a matter of law, the defence was never engaged. One could never say, consistently with Boucher v GJ Coles, that this could be characterised as something which was due to the incalculable intervention of a third party from outside; the unforeseen acts of a stranger. That is so, if for no other reason than it was the plaintiff who got into the car knowing she was doing so with a drunk driver, or in circumstances where she ought to have known that she was doing so with a drunk driver.

One can go to many of the cases in this area, but Boucher v GJ Coles is sufficient. That was the well-known case of the retailer with the can of contaminated peas on the shelf, and the Full Court of the Supreme Court of South Australia said on the one hand, the defence might apply where a stranger breaks in and plants peas which have been poisoned on the shelves and the retailer has no knowledge of that. It is otherwise, and the defence does not apply if the retailer brings in peas in cans which are contaminated or otherwise spoiled.

In those circumstances, there is no intervention by a third party from outside. It is not something unforeseen. It is simply part and parcel of what happens to a retailer. Likewise here, getting back into a car with a drunk driver and having difficulty engaging the seatbelt is not something which could ever come, in our submission, within the Norcock v Bowey defence. As we understand it, that defence has not in terms been previously considered by this Court.

The third and final point concerns GST – I will not be long with that. It would not of itself warrant the grant of special leave, but it is an important matter of practical operation, just like this Court’s decision in Golden Eagle v Zhang, which decided that prospective, not historical, actuarial tables should be used. In this case, because of the Commonwealth legislation which provides an exemption from GST for personal care services, it was wrong for the Full Court to conclude, as it did at application book 285, paragraph 18, that:

The Judge was correct to “begin” his assessment . . . [with] the GST inclusive rate.

The Full Court go on to explain that the legislation might change. Of course, since Todorovic v Waller in 1983, it has never been appropriate to assess damages by reference to the possibility that legislation may subsequently change. That has an impact on the calculation of damages on a daily basis across common law courts in Australia. If the Court pleases.

FRENCH CJ: Mr Livesey, do I understand, having regard to the last paragraph or so of your submissions, that your client would undertake, if special leave were granted, to not seek to disturb the costs orders below and to meet the costs of the appeal in this application in any event?

MR LIVESEY: I have those instructions, yes.

FRENCH CJ: Yes, all right, thank you. Yes, Mr Whitington.

MR WHITINGTON: Can I deal with the intoxication issue first? Can I take the Court to the correct provision in issue? If the Court goes to application book page 224, section 47 of the Civil Liability Act, subsection (1)(a)(iii) was the one my learned friend took the Court to. The trial judge found that the respondent was not aware, but ought to have been aware, of intoxication, and that was not in issue on appeal. The provision in issue on appeal is subsection (2):

The injured person may rebut the presumption [of contributory negligence] by establishing -

paragraph (b), in this case –

(b) the injured person could not reasonably be expected to have avoided the risk.

Now, my learned friend also spoke to the question of the trip. In fact, with great respect to my learned friend, he confused two trips. If I could ask the Court to open up paragraph 14 of the trial judge’s reasons, application book 8. What happened on this occasion was that the respondent who was found after the accident to have a zero alcohol reading drove the two men, including the applicant, around on a mission to find cigarettes. His Honour’s finding was that they were occupied about 10 to 15 minutes in so doing, and that they drove out of the town. That was the effect of the evidence; they drove out of the town for 10 to 15 minutes.

If the Court comes back then to page 319, it was a separate trip that my learned friend conflated by reference to the map. If the Court then has regard to the map; in about the centre of the map at the junction of Port Victoria-Urania Street and Port Victoria-Wauraltee Street, and comes back towards the bottom right-hand corner about a millimetre, the Court has there the point where that 10 to 15 minute trip around the environments of Port Victoria stopped while the respondent got out to relieve herself.

It was then that the applicant jumped in the front seat and insisted upon driving, and the trip that my learned friend explained to the Court then proceeded back along Port Victoria-Wauraltee Street towards the Spencer Gulf sign, past the junction of Port Victoria-Maitland Road, across some ripple strips, down what is Main Street, and the Court might see Lawhill Street. He was speeding and driving erratically. He then did a so-called burnout at the intersection of Lawhill and Main. He came back up Main, and then entered again Wauraltee Street at about the point of the original stopping place, and that is where the accident occurred.

So there were, in fact, two trips. That second trip was the one upon which the respondent could not engage the seatbelt owing to the gravitational forces of the car. That took less than a minute, whereas the other trip around the environs extended over about 15 minutes, and it was as a result of that that the respondent said she had become confused and did not know her bearings or her orientation to Port Victoria.

If I can come back then to the exception provision, it was interpreted both by the Chief Justice and by Justices Gray and Nicholson as involving an objective inquiry as to what it was reasonable to expect of a plaintiff in the circumstances – the.....of that in the judgment. If I could take the Court for a moment to the Chief Justice’s reasons at paragraph 30, application book 210, and particularly invite attention to the last two sentences.

The relevant inquiry for the court focuses on the injured person and what they could reasonably be expected to have done to avoid the risk. Both judgments accepted that the section required an evaluation to be made by the fact finder as to whether it was reasonable, as opposed to irrational, to expect the plaintiff to have acted in a particular way. In other words, both judgments accepted that the conduct of the plaintiff must be that of a reasonable person in the circumstances.

In that analysis, no allowance was made for reliance on the individual idiosyncratic mental characteristics of the plaintiff. We would say there is a fundamental distinction to be drawn between objective circumstances affecting a plaintiff in their decision-making and subjective idiosyncratic mental processes, and the Full Court was well aware of that.

As a result of that analysis, the question arises how the court is to evaluate the facts. It is our submission that such an evaluation is inevitably one about which reasonable minds may differ, with no evaluation being uniquely right. Both the majority and the Chief Justice considered that the statutory formula involved the court in a comparative assessment of the risks, involved the plaintiff acting as they did, and in the plaintiff adopting an alternative course which would avoid the risk that eventuated. In the case of the application of the formula to a motor vehicle accident, this involved the assessment of the risk involved in riding in the motor vehicle, and the risk of not riding in the motor vehicle.

Both the majority and the Chief Justice considered that the interpretation and application of the statutory formula was informed by the common law doctrine of alternative danger, and both the majority and the Chief Justice considered that the balancing of risks critically required a close analysis of the circumstances of each category of risk. They conducted the comparative evaluation by reference to the circumstances obtaining and bearing upon the respondent at the time she was called upon to make the decision whether to get in the car, or somehow find her own way back. In that connection, the majority particularly emphasised, we would say correctly, that the statutory formula required the evaluation to be undertaken without the benefit of hindsight.

The essential difference between the majority and the Chief Justice was how one evaluated the respective risks. The majority, for instance, assessed the risk of an accident occurring in these circumstances as relatively low. The Chief Justice assessed it as high, although we would say in a generic sense, rather than in a specific sense relative to the particular circumstances of this case. The majority also found that a rational assessment that the risk for the personal safety of a young pregnant woman walking alone on an unlit road at 2.00 am in an unfamiliar rural area was significant. The Chief Justice, conversely, assessed it as very low. However, it is significant - - -

FRENCH CJ: He also drew a line between, did he not, as reflected at paragraph 32 of his judgment:

the subjective attributes of the injured person –

MR WHITINGTON: Precisely, your Honour, yes.

FRENCH CJ: Whereas the argument is that what appears at 111 and the surrounding parts of the joint judgment at 234 brings in what are properly characterised as “subjective attributes”, and therefore involves what amounts to a different test. I am putting it that way simply for the purpose of asking whether or not there is not a question of principle involved there as to how the statutory provision works.

MR WHITINGTON: We say the Chief Justice was right to say that the focus is on what could be reasonably expected of the injured person. The fundamental point that we would want to make in relation to your Honour’s distinction is that the law recognises reaction of the mind as a fact. The question of whether a particular reaction is within the range of normal, or the natural and probable, is a question of evaluative fact for the trier of fact.

It is one thing to say that a plaintiff has a particular mental condition – and this plaintiff did, and we put this submission to the Full Court and it was rejected – which has a bearing upon their decision-making. It is a different thing to say that a particular plaintiff has objective attributes, or is affected by particular circumstances, which do not distinctly bear upon their particular mental processes; that is, they are not in any sense disabled or defective. That, we say, is the fundamental distinction.

We say that that was recognised by both the Chief Justice and the majority, and the majority at paragraph 111, we say, were very careful to bring to account any particular idiosyncratic subjective mental process of the respondent, but rather bring to bear objective circumstances which might have confronted any normal person such as being confronted unexpectedly with a confusing situation, such as being confronted unexpectedly with being left on a dark country road – that is an objective circumstance – and then testing that by reference to a normal human response.

KEANE J: Where do they bring into account the fact that she had originally been the driver, and that he was insisting that he drive, and that the other passenger was urging that he not do that? Where do they address that as bearing on the objective reasonableness of her decision?

MR WHITINGTON: I think, perhaps, in paragraph 111 is the best I can say, your Honour. They say there that:

Ms Chadwick had expected to return to the car as driver, but instead found Mr Allen in the driver’s seat refusing to move. Ms Chadwick remonstrated but Mr Allen responded aggressively, directing her to “get in the fucking car”. Mr Allen had created a situation in which Ms Chadwick had to make a choice. On the one hand, she could stay out of the car and attempt to locate and walk to the hotel. Her other choice was to be a passenger in the motor vehicle and run the risk associated with Mr Allen’s intoxication as the vehicle returned to the hotel. The risks associated with the return to the hotel by motor vehicle were lessened by the probable absence of any other vehicles on the road –

et cetera. That is where they bring that to bear, and then again, perhaps, in paragraph 113 on page 235, in the fourth line starting “In any event” –

the plaintiff is not to be judged against the standard of a perfectly rational decision maker, equipped with the relevant statistical evidence and capable of accurately assessing and weighing the probability of encountering harm attendant on two particular courses of action. It is to be expected that any young woman in an unfamiliar, rural area would perceive a significant risk to her personal safety in walking alone along an unlit road at 2.00 am.

We say that is bringing to bear what could reasonably be expected of a normal person in those circumstances. It is not bringing to bear any peculiar, idiosyncratic, beyond the range of normal mental response of the respondent. At paragraph 114, the majority emphasised that they consider –

the above are objective considerations –

and so on. They then address some truly subjective or idiosyncratic factors that we advanced on an alternative argument in the Full Court at paragraph 115; that is, the emotional dependence of the respondent upon the applicant. We sought in the Full Court to have those brought to bear upon her decision-making process as being relevant to the notion of “injured person”, but the Full Court made it plain, or at least the majority here made it plain, that they did not bring to account in the scales of the reaction to be expected of a reasonable person those kinds of truly subjective criterion. We say that the approach of the majority was plainly correct.

One of the critical differences between the majority and the Chief Justice was that the Chief Justice challenged the finding of the trial judge that the respondent was disoriented at the time she got back into the car, potentially on three grounds. The first ground was that it was inherently improbable that this could be so when the respondent had only previously driven around the streets of a small town for some 15 minutes. As I sought to explain at the outset, that misunderstood the evidence and the findings, which were to the effect that in driving for some 15 minutes or thereabouts under the direction of the applicant and Mr Martlew, the car had travelled beyond the township of Port Victoria and that appears in the trial judge’s reasons at paragraphs 14 to 17 - - -

FRENCH CJ: Our concern here is with questions of principle said to arise out of the way in which the contributory negligence provisions of section 47 are applied, and section - - -

MR WHITINGTON: We say that our learned friends have not thrown up any question of principle. We say, plainly, it is right to say that you exclude subjective mental responses. That is what both judgments did, but that does not exclude external, extrinsic or relevant circumstances bearing upon the decision-making of the injured person. For instance, if we were dealing with - - -

FRENCH CJ: That then, you say, reduces to an argument about characterisation of the factors referred to in paragraph 111 of the joint judgment?

MR WHITINGTON: Yes. Take this case; assume we were talking about the reasonableness of the decision of a young woman walking alone at night in an area where it was known that rapes took place and her decision-making in response. You would not exclude the fact that she was female, or that it was dark, or perhaps that she did not know where she was. If you take the case of an elderly person who has to make a decision whether they take a particular route over another route, and they know that the first route has a history of assault and violence, and they know as an elderly person they are relatively frail and they could not withstand an assault, then it would not be inappropriate under this formula to bring to bear that - - -

FRENCH CJ: I am sorry, what do you have to say about the seatbelt issue, Mr Whitington? I am only asking because the orange light has just gone on.

MR WHITINGTON: Your Honour, the seatbelt issue, again, we say, does not raise any question of principle.

KEANE J: To decide the case in the way the majority did, they had to disregard the findings of fact by the primary judge, did they not, in that the primary judge found that the respondent had opportunities to fix the seatbelt at times during the journey before the accident?

MR WHITINGTON: The journey took about a minute. The trial judge found, accepting the applicant’s expert witness over the respondent’s, that there were two opportunities, possibly of seven seconds each or thereabouts, as opposed to one opportunity, on the other expert’s account, of about five seconds, in which the seatbelt would have been free to lock because the gravitational forces had diminished to a point where that could have been done. That expert evidence depended upon the rather garbled accounts of witnesses, including oral accounts, of what they heard on the night to form some view – for the experts to form some view about the manner of driving and the extent of acceleration or deceleration. The point was that the acceleration forces operated on deceleration, and owing to the centripetal forces – I should say, centrifugal forces – when the car was going around corners.

The plurality found that that evidence did not permit any reliable view to be formed about the availability of opportunities. In any event, they said if there were any opportunities, it was completely unrealistic to expect the respondent to take advantage of them when for most of that trip, the minute trip, she would have been pulling at the seatbelt and the gravitational forces would have locked it. The Chief Justice took a slightly different approach, and he said that if you find that there was an opportunity and the respondent pulled too hard, which also locked the seatbelt, during any such opportunity, that was the natural and probable outcome of the applicant’s manner of driving. So however you approach it, it comes down to the fact that the respondent had no reasonable opportunity in the course of that one minute to unlock the seatbelt, and it could not therefore be said, fairly, that she would have been convicted of an offence of driving in a car fitted with a seatbelt without having it done up or locked.

FRENCH CJ: Thank you, Mr Whitington, your time is up now. We will not need to trouble you in reply, Mr Livesey. There will be a grant of special leave on the undertaking that you have given as to costs. I would expect half a day to a day?

MR LIVESEY: Thank you, your Honour, yes.

FRENCH CJ: Mr Whitington, do you agree with that estimate?

MR WHITINGTON: Yes, your Honour.

FRENCH CJ: Yes. There is a standard timetable for the purposes of submissions. Thank you.

AT 11.56 AM THE MATTER WAS CONCLUDED