Occupiers liability: unaccompanied “L” plate driver on a private road

Simpson v Grundy & Anor [2011] QSC 299

In a somewhat unusual factual matrix the plaintiff was injured when she was driving and rolled on an internal road on a farm.  She was on her “learners” and unaccompanied in an unregistered car. However, she had sought permission both from her step father and mother in the presence of the owner and occupier, whom she regarded as her grandfather, although not biologically related. She brought a claim against the occupier and in general negligence.

Leaving the issues of credit and the fracturing of the family as a result of the litigation to one side, the review of the law in this context is useful.

Dalton J

[42] In his address, counsel for the plaintiff put this case as one of occupier’s liability, although the statement of claim is not so limited. He relied upon the Bluebird as the dangerous thing at Avenal. It is difficult to see that the defendant is in truth sued as an occupier.[1] The dirt road upon which the accident occurred was in good condition. The car in which the accident occurred was in good condition (if this were the defendant’s, rather than Mr Edward’s, responsibility). There is no suggestion that there was anything dangerous about the condition of the property, Avenal. Having the Bluebird at the property was not dangerous. In Northern Sandblasting Pty Ltd v Harris[2] Brennan CJ said that the, “true bases of the occupier’s duty of care are the power of control which an occupier has to consent to another’s entry and power to safeguard the entrant against injury or loss from defects in the occupied premises.” In Lipman v Clendinnen[3] Dixon J said that the duty rested on occupation and control of premises. As owner of the property upon which the plaintiff proposed to drive, it was within the authority of the defendant to forbid the plaintiff driving on his land. In my view however, the claim is really one for failing to supervise the plaintiff, rather than a traditional claim brought against an occupier in relation to the state of premises.

[43] I cannot see that it matters which way the claim is characterised. It has long been the law that, “circumstances may arise, unrelated to questions of the safety of the occupied premises, in which the obligations of the occupier…fall to be determined in accordance with the general principles of liability for negligence.”[4] Even if the claim were properly an occupier’s liability claim, since Australian Safeway Stores Pty Ltd v Zaluzna,[5] the ordinary principles of negligence law apply to a claim such as this. The defendant submitted there was no duty as occupier, but went on to address the supervision case.

Duty

[44] Driving a car is a potentially dangerous activity, wherever it occurs. No doubt those potential dangers were increased here because the driver was young and inexperienced; driving unaccompanied by an adult; driving an unfamiliar car, and driving on a dirt road. There was a reasonably foreseeable risk of the plaintiff injuring herself if she drove the Bluebird in these circumstances. It was not an insignificant, far-fetched or fanciful risk. Because he had the authority to forbid the plaintiff driving, I find that the defendant owed the plaintiff a duty of care in these circumstances.

Breach

[45] This is not a failure to warn case. The plaintiff’s case is that the defendant ought to have forbidden her driving the Bluebird, unaccompanied by an adult. Whether or not the defendant breached the duty of care he owed to the plaintiff depends upon what a reasonable person would have done in the circumstances by way of response to the foreseeable risks involved in the plaintiff’s driving. This is a question of fact, which as Mason J said in Wyong Shire Council v Shirt,[6] depends upon, “a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.” The enquiry is as to, “the standard of response to be ascribed to the reasonable man in the defendant’s position.”[7] “The central question concerns the reasonableness of the defendant’s behaviour.”[8] In RTA v Dederer,[9] Gummow J said this:

“Leaving aside matters such as vicarious liability and the potential existence of non-delegable duties of care…the exercise of reasonable care is always sufficient to exculpate a defendant in an action in negligence. In Blyth v Birmingham Waterworks, Alderson B laid down the nature of the action as long ago as 1856:

‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

…”

[46] Later in that judgement Gummow J said, “What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention.”[10] The test must be applied having regard to community standards and common experience.[11]

[47] In this case the plaintiff was a competent learner driver. She had experience driving on dirt roads, and some 30 hours driving experience overall. The defendant did not know all this. His evidence was that he knew she had her learner’s permit and that Mrs Isles had advanced money to buy her a car. He knew that she had been driving her mother to work (from Wondai to Murgon) and had heard that she had to get, or was to get, commercial driving lessons. I accept this. In cross-examination he claimed more knowledge, specifically that the plaintiff had been driving on dirt roads at the property owned by her step-father’s parents, and that she had undertaken one commercial driving lesson. I reject this further evidence. It went further than his evidence-in-chief, and seemed to be argumentative elaboration based on evidence Mr Grundy had listened to during the preceding part of the trial. Thus the defendant’s knowledge about the plaintiff’s driving experience and ability was more limited than that of Mr Lorne. Of all those present at Avenal, Mr Lorne knew the plaintiff’s abilities and experience on dirt roads best.

[48] The plaintiff was 17 years old at the relevant time. At law she was still a child, and someone who must only drive on a public road when accompanied by an adult. As a group teenagers and young adults do engage in risk-taking behaviour. Nonetheless the plaintiff was close to adulthood, and old enough that she was able to understand risk and a warning to drive sensibly. She was also old enough that a view could be formed about whether she would act sensibly or reliably if allowed to drive the car. Mr Grundy had known her over many years, and it was not suggested that he knew anything of her character which might make her irresponsible. Mr Lorne and Mrs Isles could be expected to have a better appreciation than the defendant of whether she would behave sensibly if allowed to drive.

[49] Mr Lorne said he was driving on farms from the age of 13 or 14 and agreed that it was “the bush way” to allow teenage children to drive on properties. The case of Smith v Leurs[12] is relevant here. It concerned a parent’s liability in negligence for having provided a 13 year old boy with a shanghai, accompanied by a warning about its safe use. He used the shanghai and took out the eye of another child. Undoubtedly the shanghai was dangerous, but the boy had been warned of the danger; he was old enough to understand the warning and there was no reason to suspect he would disobey it. It was held that the parents were not negligent. To require them to prohibit the use of a shanghai was said to involve setting up an impracticable and unreasonably high standard of parental duty. Dixon J said:

“The standard of care is that of the reasonably prudent man, and whether it has been fulfilled is to be judged according to all the circumstances including the practices and uses prevailing in the community and a common understanding of what is practicable and what is to be expected.”[13]

Here, the fact that country teenagers drive on private property before they are old enough to obtain a licence to drive on public roads is important in judging the standard of care to which Mr Grundy should be held. When the plaintiff proposed going for a drive, she was not proposing something extraordinary, she proposed to do something which it is accepted that country teenagers do.

[50] The plaintiff proposed driving a car which was in good condition on a dirt road which was in good condition. The defendant was a mechanic by trade and he serviced the Bluebird, so he knew its condition. He knew it was an automatic. He knew the plaintiff had never driven the Bluebird before. He also knew the condition of the road on which the children drove, he had recently graded it. He knew it was flat, straight and well-formed. He can be presumed to know that there is a risk of serious injury to someone involved in a motor vehicle accident. However, having regard to everything else he knew, he could not have foreseen that a motor accident was likely to occur.

[51] The defendant was not the plaintiff’s parent. Her step-father and her grandmother were present when she asked permission to drive. Both allowed her to drive and both warned her to take care while doing so. That they were content to let the plaintiff drive was, in my view, the most significant factor in deciding whether or not Mr Grundy had a duty to forbid the plaintiff driving. As Windeyer J remarked in McHale v Watson,[14] the control of a child is commonly regarded as the responsibility of his or her parents. While Mr Grundy stood in an avuncular role to the plaintiff, her step-father and grandmother were more closely connected to the plaintiff than he was, and more closely responsible for her care and safety than he was. When the plaintiff and Sam announced their intention to go for a drive to the group of adults at the dining table, it was their stepfather who responded and questioned the plaintiff as to who was to drive and where they were going. It was natural that, of those present, Mr Lorne responded, and natural that he enquired after matters bearing on the children’s safety – he was performing his parental role. Mrs Isles’ role as the children’s grandmother made it natural that she also spoke to the children and warned the plaintiff to be careful. Having regard to the considerations which ordinarily regulate the conduct of human affairs, parents, as the persons primarily responsible for their children’s safety, are the persons who would normally determine whether the children drove in these circumstances.

[52] The fact that the plaintiff’s step-father and grandmother allowed the plaintiff to drive did not negate the duty owed by Mr Grundy, but it militates strongly against the notion that he breached that duty by not forbidding the drive. Had the plaintiff proposed to do something plainly dangerous on his land, Mr Grundy no doubt had a duty to forbid it, whatever attitude was taken by the plaintiff’s step-father and grandmother. However, what was proposed here was an activity which fell within a range of reasonable, common activities. In the absence of anything dangerous or unusual about the road or the Bluebird, the safety of the proposed drive depended to a very large degree upon the plaintiff’s experience and ability at driving, and her temperament. Of everybody present at Avenal that day, Mr and Mrs Lorne were in the best position to assess those. They were in a better position to assess them than Mr Grundy. I think the following passage from Hetherington v Belyando Shire Council and Anor is apposite. That case concerned a small child whose hand was crushed when playing on a gate at a sports field, under the supervision of her mother:

“…Mrs Hetherington was in a much better position than [the occupier] was to assess the hazard; she had seen her daughter near the gate, seen that other children had been swinging on it, was in a position to see how much supervision there was, if any, in the area other than by herself, and presumably knew her own child well and her child’s proclivities. There was no evidence that the respondent knew any of those matters. Yet despite her much better knowledge, Mrs Hetherington did not remove the plaintiff child from the area, did not direct other children to stop swinging on the gate, did not ask that the gate be locked, and did not remain in the area supervising the children. The respondent stressed that it was not contending Mrs Hetherington was negligent; but that a mature adult with the plaintiff’s interests strongly at heart who could be expected to be aware of the risk of injury, assessed that risk as one which could safely be taken.” [15]

[53] In David Jones (Canberra) Pty Ltd v Stone[16] Walsh J considered the judgment of Devlin J in Phipps v Rochester Corporation.[17] Walsh J noted Devlin J’s view that an occupier is entitled to take account of the fact that just as prudent people look after themselves, prudent people look after their children. Walsh J said:

“I think that when considering the duty of an invitor this approach may properly be taken. It does not warrant a conclusion that the duty which a parent or guardian is expected to perform excludes any duty in the occupier. But it is a circumstance which is relevant and important in considering what is required of the occupier in a given situation…when it is claimed that an injury was so caused and that the occupier should have taken steps to prevent it, the protection which the child may have expected to receive from his parent or guardian must be taken into account.

[54] Here, I think Mr Grundy was entitled to take cognisance of the fact that the plaintiff’s father was content for her to drive after giving a warning, and that so was Mrs Isles. He was entitled to assume that these people who had more responsibility for her care, and more knowledge of her driving ability and character, than he had, were acting responsibly in the plaintiff’s interests.

[55] The case of Carlisle v Mullrai Pty Ltd[18] is also of assistance in assessing the effect of the presence of parents on the liability of a third party. That case turned on whether or not a duty was owed, but I think it assists in my considerations as to breach. In that case two 16 year old girls had visited a farm and been allowed to ride as pillion passengers on a four-wheel motorbike. The ignition key was left in the motorbike and the girls rode it themselves, coming to harm. The New South Wales Court of Appeal dismissed an appeal against a finding for the defendant. It was found that the girls’ deciding to ride the motorbike themselves was unforeseeable. One of the factors in coming to that conclusion was that when the owner of the property left the keys in the ignition of the motorbike and, “left the scene, the situation, as reasonably perceived by her, was that the girls were in a position to be controlled by the parents of one of them. …”

[56] Mr Grundy knew that the plaintiff proposed to drive a car in good condition on a safe road. He knew that the plaintiff was a 17 year old learner driver and he was accustomed to teenagers being allowed to drive on private land. He knew that the plaintiff’s stepfather and grandmother knew her driving ability and temperament better than he did, and that they were content for her to drive. He heard them warn her. There was no reason to suppose they were not acting responsibly in the plaintiff’s interests. In my view he did not breach the duty he owed the plaintiff when he did not forbid the drive she proposed. For this reason I give judgment in favour of the defendant.

Contributory Negligence

[57] Although it is unnecessary in light of my finding about the defendant’s liability, I record the findings I would make as to contributory negligence were it necessary. There were three factual matters raised by the defendant in this respect.

Deliberate Act

[58] The defendant ran a case that the accident was the result of a deliberate experiment by the plaintiff to see if she could fishtail or roll the Bluebird. The plaintiff could not remember, because of memory loss associated with head injury in the accident, but said that she would not have acted this way. And, it must be said, the allegations were but faintly put to her.

[59] Mrs Isles said that both Sam and Debbie-Jo told her after the accident that Debbie-Jo was fishtailing the car and going at 80 km an hour. She did not suggest that either child said that Debbie-Jo was deliberately fishtailing the car. Mr Grundy said he too received admissions from Debbie-Jo after the accident that she was going too fast and fishtailing. Again, he did not say that the plaintiff admitted she was deliberately fishtailing the car. Sam said that he recalled the car swerving from left to right before it rolled. The car was likely to do this if it were driven too fast on a dirt road, and then the brakes were applied in an effort to slow down. In answer to questioning as to whether Debbie-Jo had been intentionally fishtailing the vehicle, Sam said he could not recall. As noted, I take the view that Sam replied to this effect on many occasions when he did not wish to answer a question responsively. Nonetheless, I would not make a finding of the type alleged against the plaintiff on the basis of an inference that Sam was answering this question dishonestly. It is to be recalled that Sam thought the Bluebird rolled nine times, which it clearly did not, so that there are questions about the reliability of his recollection as to the behaviour of the car in the lead-up to the accident. There was said to be evidence of fishtailing in the photographs tendered. I could not see it, and in any case, the photographs could not reveal whether it was deliberate.

[60] The defendant relied on evidence that the plaintiff had been diagnosed by a GP with bi-polar disorder, shortly before the accident. There is some mention of suicidal ideation in the GP’s notes. The plaintiff was prescribed Sodium Valproate very recently before the accident. The plaintiff said she took the medication as prescribed and said this as to the effect the medication had on her:

“Oh, my God. When I took the medication I was, thought I was flying, like 10 foot in the air, I felt great, and if I missed it a day I was down to the ground, I wanted to kill myself.

Right?– Yeah, I felt like I was great, I was the tallest person in the world. I thought I was flying like a kite. If I missed one day, your Honour, I wanted to kill myself. It played with my head really bad, yes.”

[61] The plaintiff’s psychological state at the time of the accident, as a result of mental illness, or as a result of taking Sodium Valproate, is simply not known. What she was generally suffering or feeling is a relevant consideration, but there is not sufficient evidence before me to allow me to conclude that at the time of the drive on Avenal the plaintiff was suffering from some altered state of mind such that she was deliberately trying to fishtail or roll the car. That she admittedly chose not to put on a seatbelt, and drove too fast are not matters so outside the normal behaviour of a teenager that I could conclude she was deliberately trying to injure herself, or deliberately taking extraordinary risks.

Speed

[62] It was pleaded by the plaintiff that one of the causes of the accident was the plaintiff driving too fast. The plaintiff herself cannot recall the time immediately before the accident, but conceded that it would have been a stupid thing to have driven very fast on the dirt road. The car rolled along the road, rather than leaving the road and entering the table drain beside it prior to rolling. I accept that for this to happen the car must have been driven at excessive speed in the circumstances.

Seatbelt

[63] Debbie-Jo admitted she did not wear a seatbelt. She did not think that it was compulsory to wear a seatbelt on a private road. Sam says he told her to put one on but she did not. He put his on. Debbie-Jo conceded in cross-examination that she deliberately chose not to wear a seatbelt, and that she knew prior to the accident that a seatbelt’s function was to protect the wearer in case of accident.

[64] An engineer gave evidence as to the state of the Bluebird after the accident and as to the likely dynamics of the Bluebird’s rolling. The driver’s side seatbelt in the Bluebird was a retractable lap sash belt (three point type). It was in good working order at the time of the examination. From the damage to the Bluebird, the engineer was able to say that there was a high likelihood that it rolled with the passenger side of the car coming into contact with the road first. In such a circumstance the centrifugal forces acting on the driver are likely to eject the driver from the car if a seatbelt is not worn and the window is open. I find that had the plaintiff been wearing a seatbelt, she probably would not have been thrown from the vehicle.

[65] The photographs of the vehicle show that the pillars adjacent to the driver (that is, on both sides of the driver’s side window) and the roof above the driver, were crushed inwards and downwards more than the corresponding parts of the car on the passenger’s side. Having regard to photograph 7 annexed to the engineer’s report, and to the engineer’s evidence, it seems less probable than not, that, had the plaintiff remained in the driver’s seat she would have been badly injured because the pillars and roof were crushed in and down onto, or towards, her. From photograph 7 in particular, there seems to me to have been adequate space for the plaintiff to remain unharmed by the crushing damage to the pillars and roof on the driver’s side.

[66] The plaintiff sustained a wedge fracture to T8, a closed head injury and abrasions and bruises in the accident. I find that had she worn a seatbelt she would most likely have avoided any serious injury.

Apportionment

[67] In Podrebersek v Australian Iron and Steel Pty Ltd[19] the High Court held that:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of a reasonable man…and of the relative importance of the acts of the parties in causing the damage…It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”

[68] In making findings of contributory negligence in this case it would be necessary to bear in mind that the plaintiff was 17 at the time of the accident. Particularly where a defendant is an adult, the relationship of the adult and child ought to be taken into account in coming to an apportionment as regards contributory negligence – Waverley Council v Ferreira.[20]

[69] In Doubleday v Kelly[21] principles relating to contributory negligence of a child were discussed. McTiernan ACJ in McHale v Watson (above) was cited, to the effect that, “children who are very young may be manifestly incapable of exercising any of the qualities necessary to the perception of risk. On the other hand, children who are almost adults may be regarded often as in the same position as adults.” That case applied the equivalent of s 23(2)(a) of the Civil Liability Act 2003 (Qld) to mean that a plaintiff’s being a child ought to be taken into account when assessing contributory negligence, and I adopt that approach.

[70] In Shellharbour City Council v Rigby and Anor,[22] the New South Wales Court of Appeal refused to interfere with an apportionment of 20 per cent contributory negligence made against a 14 year old plaintiff who, disobeying her parents, went to the BMX bike track by herself and was injured. No greater apportionment was made because, “the plaintiff was young and behaving in a way typical for persons of her age – exhibiting…the type of spontaneous and/or reckless behaviour typical of children of that age.”

[71] Here the plaintiff was 17, and was specifically warned to drive sensibly immediately before she drove. Her younger brother reminded her about her seatbelt and she ignored him. Had the plaintiff been a mature adult I would have made an apportionment of 25% against her for failure to wear a seatbelt and 25% in relation to her driving too fast, a total of 50%. At her age, I would have made an apportionment of 15% in relation to each factor, a total of 30% against her.

Brisbane Barrister – David Cormack

 

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