CLA – “obvious risk” & “dangerous recreational activity” – voluntary assumption of risk

Wilson v Lambkin [2010] QDC 254

Catchwords

NEGLIGENCE – CLAIM FOR DAMAGES – PERSONAL INJURY – LIABILITY – QUANTUM – where licensed driver collided with off road object – duty of care of inexperienced licensed driver – learner driver – driver training – numerous laps of isolated bushland road – whether “dangerous recreational activity” occurred – whether an “obvious risk” – voluntary assumption of risk – contributory negligence

Griffin SC DCJ

His Honour accepted the plaintiff’s credibility:

[12] At the end of these activities the uncontested evidence is that the defendant took the wheel of the motor vehicle to travel back to his home. Both the defendant and Telford have little or no recollection of the events that followed. The plaintiff’s recollection is that the defendant after taking the wheel of the vehicle at the dead-end section of the road operated the accelerator of the vehicle heavily and sped down the road eventually losing control of the motor vehicle and swerving off the road into a culvert where the vehicle hit a stone wall and the three parties were all injured.

[13] During the course of this manoeuvre, the plaintiff, sitting behind the defendant called out for him to slow down. In a statement to police about a week after the events, the plaintiff said that the demand to slow down occurred just as the car was travelling on to the gravel.

[14] Although this is somewhat inconsistent with the evidence at trial the speed with which events must have occurred lead me to accept the plaintiff’s evidence that at the first reasonable opportunity the plaintiff made that demand of the defendant. I do not consider on the evidence that the plaintiff allowed the defendant to continue this dangerous course of driving until the last minute when it was obvious an accident would occur. In fact in all other respects apart from that which I have mentioned, I accept the plaintiff’s evidence both on matters concerning the circumstances of the accident and in relation to the effect of his injuries which go to the question of quantum.

[15] On this topic my impression of the plaintiff was that his evidence was considered and on occasions for example in relation to aspects of lasting disability, he made concessions which I consider to be consistent with a truthful witness.

[21] Although I have accepted that there was a common behaviour amongst the three companions to drive the motor vehicle in a manner which would not have been permitted and tolerated on a public road and further although that on occasions involved some speed beyond the speed limit set for Simpsons Falls Road I am nonetheless satisfied that the defendant’s behaviour in taking the wheel of the motor vehicle for the final time and speeding down the hill was of a character and degree beyond what had occurred earlier that night. It was at a level of dangerousness far more serious than could have been contemplated or was part of the behaviour which had been earlier indulged in by the three companions. The effect of the plaintiff’s evidence is that he was taken by surprise by this behaviour in driving by the defendant. I accept that. Furthermore, I accept that it was not contemplated nor able to be foreseen by the plaintiff or any reasonable person. Furthermore, in the circumstances in which this driving happened, the plaintiff was not practically in a position to extricate himself from the danger which the defendant placed his passengers in by pursuing that course of driving.

Duty and standard of care

His Honour considered in various contexts when an “obvious risk” applied and in each instance dismissed it.

[29] At the commencement of proceedings the second respondent abandoned an argument as to the absence of a duty of care. As to the issue of standard of care owed by the first defendant to the plaintiff, that standard is a standard of care to be expected of a reasonable driver even though the evidence discloses that the first defendant was not a particularly experienced driver. On the evidence in this case, the standard of care owed by the first defendant to the plaintiff was that of a reasonable driver and the defendant was required to exercise that the standard of care to the plaintiff was a standard to be expected of a reasonable driver.

[30] On the evidence I conclude that the collision was caused or contributed to by the inability of the first defendant to properly manage and control the motor vehicle and the collision which occurred was a failure by the first defendant to exercise judgment and discretion in controlling the motor vehicle by reason of the speed and manner of the driving of the motor vehicle when with the plaintiff and Telford as passengers the first defendant as driver “put his foot down” and accelerated the motor vehicle. I am satisfied on the evidence that prior to the collision the plaintiff protested at the manner of the first defendant’s driving and asked him to slow down in circumstances where the first defendant was travelling at a speed that was substantially in excess of the speed which had been used by all three parties earlier in the evening when doing laps of the circuit on Simpsons Falls Road. The evidence I conclude is that Lambkin simply drove too fast at that time and drove differently and dangerously from the manner in which he had earlier operated the motor vehicle when all three parties were either drivers or passengers in the vehicle. I am satisfied that there was a breach of the appropriate standard of care by the first defendant.

Was there a dangerous recreational activity undertaken?

[38] The plaintiff submits that the “activity” was complete at the time of the accident and the group were on the journey home and furthermore in any event that activity was not dangerous.

[39] Section 19 of the Act provides: a person is not liable in negligence for harm suffered by another person as a result of the materialization of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.

[40] “Dangerous recreational activity” is defined to mean an activity engaged in for enjoyment, relaxation or leisure which involves a significant degree of risk of physical harm to a person. The “obvious risk” referred to has the same meaning as for Division 3 of the Act. Although I have concluded that there was no “obvious risk” although the activity was a “recreational activity” within the meaning of the definition for that activity to be dangerous it must involve “a significant degree of risk of physical harm to a person”. [4]

[41] The activity which I have concluded the three parties indulged in, before the first defendant finally took over to drive home was, although perhaps mindless and attended on occasions by some speed, nonetheless not an activity which properly could be said to be a dangerous recreational activity. In Lormine Pty Ltd v Xuereb[5] , Mason P with whom McColl and Hunt JA agreed observed:

“The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The capitalization must take place in the particular context in which the defendant places himself or herself.”

[42] I conclude that any activities which all three indulged in during the course of doing “laps” and the burnouts by Telford such risk of injury which was likely to occur in these circumstances in any event was at a low level. On the evidence nothing of a similar quality of driving to the first defendant’s driving just prior to the accident had occurred on that night or in the past. The behaviour of the three parties prior to the driving by the first defendant could not properly in my view be categorized as a recreational activity that was “dangerous” within the meaning of the Act.

Contributory negligence

[43] The basis upon which contributory negligence should be considered in this case is as to whether the plaintiff’s agreeing to ride in the motor vehicle gives rise to the notion of contributory negligence on the plaintiff’s part. Having regard to the views I have formed on evidence relating to the prior history of driving both on that night and other occasions, there is no evidence that Lambkin had driven in the past so grossly unsafely. In the circumstances therefore, I conclude that the issue of contributory negligence on the plaintiff’s part does not arise.

Quantum

Scarring (Item 155), bowel injury (Item 73) and fractured rib (Item 39). Item 155 UpliftISV 22

$29,600

Storeman $25,308.10 $8,0000 on a global basis G-v-K threshold not met, but Wilson v MacLeay damages for grandmother visiting in hospital:80 hours at $18.00 per hour – $1,440.00

  

Brisbane Barrister – David Cormack

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