Ground 3: duty and breach
184The claim here is, first, that the primary judge failed to determine the existence and scope of the relevant duty of care before considering questions of breach. Secondly, in determining whether the defendant had been negligent, the primary judge should have recognised that the risk in question was an obvious one, and that it was necessary for the plaintiff in that regard to displace the presumption that he was aware of the risk, a task in which he had failed. Thirdly, insofar as the plaintiff's case relied on a failure to warn concerning the state of the tyres, there was no duty to do so, because the relevant risk was an obvious one. Fourthly, the primary judge had determined the scope of the duty and hence liability, by reference to an obligation to prevent harm occurring, rather than by an obligation to exercise reasonable care.
185It will be necessary to deal with these four aspects of ground 3 separately, although they were, during argument, synthesised to some degree.
186The first matter, existence and scope of duty of care, was refined by Mr Campbell SC during debate. Senior counsel submitted that there was no duty to warn the plaintiff about the defective tyres, and no duty not to allow the plaintiff to drive a vehicle with defective tyres, because:-
(a) A duty of care did not arise in a situation where the owner was in such an obvious state of intoxication that no reliance could be placed on anything he might say about the state of the vehicle;
(b) A duty of care did not arise in a situation where the owner of the vehicle and the person he permits to drive the defective vehicle are engaged in a joint enterprise of "burning off" rubber in that vehicle; and
(c) A duty of care did not arise because the driver/plaintiff knew about the condition of the tyres.
187Mr Campbell SC argued that a fact-intensive inquiry was necessary before a finding could be made that a duty of care existed.
188The second argument, concerning the scope of any duty of care, was reflected in each of the other aspects of ground 3. Mr Campbell SC submitted that there was no duty to warn, because the risk was an obvious one. There was no duty to prevent the plaintiff from driving the car (or to prevent injury or harm to him) but the duty, if it existed at all, was confined to one of exercising reasonable care.
189In relation to the issue of obvious risk, there were three propositions advanced. These were, first, that the condition of the tyres was obvious, even by virtue of a cursory inspection. Secondly, given the proposal to go out to the airport to "burn rubber", the plaintiff ought to have checked the tyres before leaving Ms Harmer's home. If the plaintiff, contrary to the primary judge's finding, did know (or ought to have known) about the tyres, the risk of harm by driving on them would have been plainly obvious to the plaintiff, thus negating any duty to warn. In that regard, Mr Campbell SC said that the primary judge's finding on contributory negligence (that the plaintiff should have inquired, or made an inspection for himself) went some way to establishing, in terms of the objective test in section 5F(1) of the Civil Liability Act 2002 , that the risk had been an obvious one.
190In relation to the issue of obvious risk, affecting both liability and contributory negligence, Mr Campbell SC argued that, as the plaintiff knew the vehicle had been off the road for some weeks for registration purposes, he ought to have known that there was a real possibility that the vehicle was not safe to drive, or, at the least, it was not roadworthy. In that situation, and given the defendant's state of inebriation, a reasonable person in the position of the plaintiff would have inspected the vehicle for himself or made further inquiries of the defendant. In that sense, there was a high degree of obviousness. As the primary judge found, Mr Campbell SC observed, the plaintiff had done neither of these things.
191Now it must be recognised at the outset that the arguments relied upon by the defendant at trial (to suggest that no duty of care arose between the plaintiff and the defendant), were primarily based on the contention that the accident was not caused by the bald tyres, but by the plaintiff's heavy acceleration within the roundabout. It did, however, as an alternative (by virtue of the pleading) include an assertion that the duty did not extend to "an accident caused or contributed to by the bald tyres on a wet road and/or the plaintiff's alcohol consumption". The aspect of the amount of alcohol the plaintiff had consumed, however, rather fell by the wayside during the trial, and was effectively sidelined as a causative factor of any great weight.
192The pleading further asserted that the duty the defendant owed to the plaintiff as owner of the vehicle "was not breached in the plaintiff's driving the vehicle at a speed which was too fast in the circumstances when the plaintiff knew, or ought to have known as a reasonable man, that the tyres were bald and the road was wet, and knew that he, the plaintiff, had consumed alcohol". Once again, the primary argument on breach was that the real cause of the accident was the speed at which the plaintiff had accelerated within the roundabout, rather than that the tyres were bald and the road was wet. The pleading was confusing, as can be seen, but there is no doubt that that is the way in which the principal issue was argued. Unfortunately, for the defendant's case, the primary judge did not agree that the accident had been caused by the plaintiff's driving the vehicle at a speed which was too fast in the circumstances. Rather, she found that the accident was caused by the bald tyres losing their grip on the roadway, resulting in the vehicle swerving towards the gutter and then spinning out of control as the plaintiff accelerated in an endeavour to reagin control. The second problem for the defendant was the primary judge's finding, after the second trial, that the plaintiff did not know that the tyres were bald.
193These findings (each of which I have found was open to the primary judge) necessarily posed considerable problems for the defendant in relation to the arguments advanced on appeal, relating to the existence of a duty of care, and the scope of such a duty.
194The proceedings were governed by the Civil Liability Act 2002 . Section 5B of the Act has been described as "misleading", in that it is headed "Duty of Care" (see Adeel's Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [13]). Clearly the section deals with breach, rather than duty. The Ipp Report 1did not recommend any alteration to the common law concepts governing questions as to when and in what circumstances a duty of care arose. The Report simply stated:-
7.4 So far as concerns the duty of care in the tort of negligence, the basic principle is that a person owes a duty of care to another if the person can reasonably be expected to have foreseen that if they did not take care, the other would suffer personal injury or death. Foreseeability is also relevant to standard of care (that is, to the question of whether a duty of care has been breached) and to remoteness of damage.
195It is a commonly accepted proposition that, in general terms, the driver of a motor vehicle owes a duty to other road users to take reasonable care. In Imbree v McNeilly (2008) 236 CLR 510, the plurality at [49] said:-
There have been various statements in this court to the effect that in many well-settled areas of the law of negligence the existence of a duty of care and its content present no difficulty and that one such example concerns the responsibilities of a motorist on the highway to avoid causing injury to the person or property of another.
There is no reason why, in general terms, this proposition should not also extend to a situation where the owner of a motor vehicle provides his car for the use of another on the highway, knowing that it is defective. For example, it has been held that an employer who provides a car to his employee has a duty to take reasonable steps to ensure that it is provided and maintained with serviceable tyres ( Wingrove & Co Pty Ltd v Sheehy (1961) 35 ALJR 313). However, the existence, and more importantly, the scope of any such duty may depend upon the circumstances of the relationship in question. As Gummow J said in RTA v Dederer (2007) 234 CLR 330 at 345 [45]:-
Although the existence of a duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation. First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all
duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.
196In determining the existence of a duty of care (even in a novel situation), the key consideration remains reasonable foreseeability. It is now accepted that the requirement of reasonable foreseeability is a condition essential to, though not necessarily sufficient for, the establishment of a duty of care 2. In Sydney Water Corporation v Turano (2009) 239 CLR 51, the court said at [45] (references omitted):-
Reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another. The concept is relevant at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at "a higher level of abstraction" than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content. It remains, as Gleeson CJ observed in Tame v New South Wales , that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.
197The arguments advanced by Mr Campbell SC in relation to the existence and scope of any duty of care in the present matter found their essential provenance in the decision of Gummow, Hayne and Kiefel JJ in Imbree v McNeilly at [82]:-
The conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if, as Latham CJ said ((1948) 77 CLR 39 at 46), "[i]n the case of the drunken driver, all standards of care are ignored [because the] drunken driver cannot even be expected to act sensibly" (emphasis added). And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver.
198In Imbree , the majority (Heydon J expressing no opinion), held that the standard of care which the inexperienced driver in that case owed the supervising passenger was the same as that owed by any other person driving a motor vehicle, that is to take reasonable care to avoid injury to others. It was not to be qualified by the driver's inexperience or unlicensed status. It was in the context of this issue that the judgment examined Insurance Commissioner v Joyce . In the latter case, the plaintiff had agreed to travel as a passenger in a car driven by a person who, two hours after a collision in which the plaintiff passenger was seriously injured, was found very drunk and asleep under a bush near the scene of the accident. The court, in Joyce , had divided in holding that the passenger must fail in his action. Of particular relevance, however, was the analysis by Dixon J of the three different bases upon which the claim of a gratuitous passenger who accepted carriage in a vehicle driven by a person known to be drunk, would then have been held to fail. The three bases were: first, no breach of duty; secondly, voluntary assumption of risk; thirdly, contributory negligence (then a complete defence). Of the first of these bases, no breach of duty, Dixon J said (at 56 - 57):-
[The position of the voluntary passenger] has been regarded as depending upon a relation which by accepting a place in the conveyance he sets up between himself and the person responsible for its management. For those who believe that negligence is not a general tort but depends on a duty arising from relations, juxtapositions, situations or conduct or activities, the duty of care thus arises... the principle applied to the case of the drunken driver's passenger is that the care he may expect corresponds with the relation he establishes. If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty.
199Reference is also made to the observation of Latham CJ in that case (at 46):-
In the case of the drunken driver, all standards of care are ignored. The drunken driver cannot even be expected to act sensibly. The other person simply "chances it."
200More recently, in Miller v Miller [2011] HCA 9; 275 ALR 611, the High Court examined these authorities in a somewhat different context. In that case, the plaintiff had been involved in a joint criminal enterprise involving the stealing of a car. The vehicle was driven by the defendant who was intoxicated and driving negligently. The plaintiff, who was a passenger, had been badly injured in an accident in the course of the enterprise, although she was ultimately saved from defeat in the litigation by virtue of the fact that she had on two occasions "begged" the defendant to let her out of the vehicle.
201The majority (French, CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) examined, in the course of their analysis, the demise of the concept of proximity, and confirmed that it was no longer a useful informing principle in the area of the establishment of duty of care (at [59]). Secondly, the majority referred to the fact that in Imbree v McNeilly , the court had overruled the decision in Cook v Cook (2008) 236 CLR 510 at 526. Thirdly, the majority noted that the immediate question in Imbree concerned the content of the duty of care, not whether any duty was owed. The majority decision approved the notion that "in determining the content of a duty of care, primacy must be given to identifying the relationship between the parties" (at [63]), and described it as "a principle of long standing in the law of Australia, stemming as it did from the dissenting reasons of Dixon J in Insurance Commissioner v Joyce ". The majority said at [64]:-
... as is implicit in what was said in all three cases ( Joyce , Smith and Imbree ) the question whether A owes B a duty to take reasonable care is not to be answered by reference only to whether A was the driver of and B a passenger in a motor vehicle. A duty of care arises from the "relations, juxtapositions, situations or conduct or activities" ( Joyce at 57 ) in question. All aspects of the relations between the parties must be considered.
202Mr Campbell SC's reliance on these cases was, as I understood his argument, threefold: first, he argued it was not possible to spell out the existence of a relevant duty of care simply from the fact that, in the present matter, the defendant was the owner of a car and the passenger in that car, while it was being driven by the plaintiff. In other words, Mr Campbell SC said that all of the facts and circumstances had to be examined, not merely the proximity of the parties, one to the other. That, I think may be readily accepted. Secondly, Mr Campbell SC submitted that one aspect of their relationship that was relevant to the existence and scope of duty of care was that the young men were intending to travel to an area near the airport that evening in the vehicle (after fitting it with two near-bald tyres) to do "burn outs". Mr Campbell SC hinted that this activity would be likely to be dangerous and perhaps illegal. Thirdly, senior counsel argued that the plaintiff's knowledge that the defendant was substantially intoxicated meant that, so far as any reliance for anything at all upon the defendant, the plaintiff was simply "chancing it". This meant that, knowing the drunken owner could not be expected "to act sensibly", no duty arose.
203As I have said, I agree with Mr Campbell SC's first proposition. I am unable, with respect, to accept the second and third propositions he enunciated. I shall briefly explain why.
204It is true that the evidence allows for the proposition that both the plaintiff and the defendant (and Mr Halls) had in contemplation later that evening that they would travel together to the airport to do "burn outs". It is also true that they had in mind to put two well-worn tyres on the car, and then, using the defendant's vehicle, burn the rubber off those tyres. Just how far that proposal or matter in contemplation would have gone is impossible to say. But, to my mind, all this is beside the point: the fact is that the plaintiff, the defendant and Mr Halls were on a separate and distinct journey to travel from Ms Harmer's residence to the plaintiff's home. That is the journey they were undertaking when the accident happened. There was nothing dangerous in that enterprise. There was nothing illegal about that journey or its content. Indeed, it might be thought that one of the reasons the plaintiff had insisted that the defendant should not drive was to avoid the illegality likely to be involved in the resulting situation, had he been permitted to drive in his state of intoxication. I do not see any parallel between cases involving an injury caused to a participant in a joint criminal enterprise, and the situation that was involved here.
205In relation to the third proposition, it appears to me to be a very different situation from Joyce's case and other authorities where a passenger has voluntarily agreed to be driven by an intoxicated person, knowing that the driver was intoxicated. As Dixon J noted in Joyce's case, there was no breach because the improper driving was caused by the driver's condition, and the plaintiff knew that when he determined to travel in the car as a passenger. If it be correct to analyse the existence and content of a duty of care by having regard to the "relations juxtapositions, situations or conduct or activities" in question, the position in the present matter is very different. The plaintiff had been drinking himself. His blood alcohol reading was 0.1, so it was not insignificant. However, the evidence indicated that the plaintiff was relatively sober, and showed no signs of intoxication. On the other hand, the defendant was, to use Mr Hull's colourful phrase at trial, "falling down drunk". At Ms Harmer's house, it was clear that the defendant was initially determined to drive his own car, with the others in it, to the plaintiff's house. No matter that he was intoxicated, it is clear that he was capable of making decisions. While his motor skills may have been badly affected, there is no suggestion in the evidence that he was unable to function cognitively.
206The point is that the defendant well knew that the tyres were bald. Despite his consumption of alcohol, he would have been well aware of the fact that it had been raining and that the roads were wet. The plaintiff did not know the tyres were bald. He was offering to drive the car in what must have been obvious to the defendant to have been a dangerous and risky situation. In my view, the circumstances I have described clearly permitted a finding of a duty of care arising as between the plaintiff and the defendant, the scope of which was to take reasonable steps to avoid the risk occurring. At the very least, the exercise of reasonable care required the defendant to warn the plaintiff that the car had bald tyres, and remind him that, in that situation, there would likely to be a real risk of an accident by driving the car in wet conditions and on a slippery road. In the circumstances that had arisen, however, the exercise of reasonable care to avoid the risk materialising required the defendant to go further and to refuse permission to the plaintiff to drive the car. The defendant was in a position to refuse that permission, as he himself acknowledged when he was cross-examined. The vehicle took some minutes to "warm-up" after the plaintiff started it, as the evidence disclosed. There was ample time for the defendant to assess the serious risk involved and to take action to avert it.
207For these reasons, I would reject the arguments based on an asserted absence of duty of care, and the arguments based on scope of duty.
208I turn now to examine the arguments on breach and "obvious risk". Breach is covered by section 5B of the Civil Liability Act 2002 :-
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
209This provision embodies Mason J's formulation in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48:-
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the 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. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
210While there are differences in wording, it has been said that section 5B(2) is a reiteration of Mason J's analysis ( Waverley Council v Ferreira [2005] NSWCA 418; Aust Torts Reports 81-818 at [45], Ipp JA (with whom Spigelman CJ and Tobias JA agreed); and see subsequent cases such as Roads and Traffic Authority (NSW) v Refrigerated Roadways [2009] NSWCA 263; 53 MVR 502; at [178]-[179], per Campbell JA).
211There are of course limits to this foreseeability, as Callinan J said in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [54] - [55]:-
Three Justices of this Court in Wyong Shire Council v Shirt held that any risk, however remote or even extremely unlikely its realisation may be, that is not far-fetched or fanciful, is foreseeable. I suppose that it is true that there is nothing new under the sun. With enough imagination and pessimism it is possible to foresee that practically any misadventure, from mishap to catastrophe is just around the corner. After all, Malthus in 1798 famously predicted that the population of the world would inevitably outstrip the capacity of the Earth to sustain it. The line between a risk that is remote or extremely unlikely to be realised, and one that is far-fetched or fanciful is a very difficult one to draw. The propounding of the rule relating to foreseeability in the terms that their Honours did in Wyong requires everyone to be a Jeremiah, and has produced the result that undue emphasis has come to be placed upon the next element for the establishment of tortious liability, the sorts of measures that a reasonable person should be expected or required to take to guard against the risk. Wyong has however been constantly applied throughout this country and in this Court since it was decided, and neither party sought to challenge it here. I am therefore bound to apply it.
Even on the application of it however, the appellant must fail at the threshold, that is on the issue of foreseeability. In my opinion, it was far-fetched and not foreseeable that the appellant, a competent, seemingly well woman would suffer within six months of taking up a part-time position, a disabling psychiatric injury, or indeed, any psychiatric injury by reason of the work that the position entailed.
212In terms of the scope of section 5B, in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited Campbell JA (McColl JA and Sackville AJA agreeing), stated, at [173]:-
Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising. As to whether such cases cover the entire field of negligence cases, see Drinkwater v Howarth [2006] NSWCA 222 at [11] - [13], [24]. Subsection 2 provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists. Section 5B presupposes the existence of the law of negligence, and operates against its background.
213Similarly, in Waverley Council v Ferreira at [47], Ipp JA (Spigelman CJ and Tobias JA agreeing) said:-
The explanation for the enactment of s 5B(2) appears from paras 7.5 to 7.18 of the Negligence Review. The Negligence Review expressed the opinion that the factors now set out in s 5B(2) should be given statutory force so that courts would focus more directly on the issue "whether it would be reasonable to require precautions to be taken against a particular risk" and to avoid conflation of the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it.
214The question in the present matter is, did the defendant, who plainly owed a duty of care to the plaintiff (and other road users) to keep his car in roadworthy condition and not to allow it to be driven while it was unsafe, breach this duty in failing to warn the plaintiff about the dangers of driving the car with its bald tyres, or in not taking reasonable steps so as to not allow the plaintiff to drive the car in that situation.
215For my part, I would have thought that the plaintiff had clearly met the onus of proving each of the matters required to be considered under section 5B of the Civil Liability Act 2002 . For the defendant to allow this car to be driven with its bald tyres on a wet night in slippery road conditions clearly raised a risk which, as he knew or ought to have known, was likely to arise. Moreover, the risk was a very significant one, given the weather and road conditions. A reasonable person (and that person is deemed to be a sober person) would have taken precautions against the risk of harm likely to be encountered, not only by the driver of the car, but by passengers in it, and perhaps other people using the highway. The exercise of reasonable care required the defendant simply to say to the plaintiff, "I will not let you drive this vehicle" with tyres in such poor condition.
216Although the duty was couched equally in a duty to warn, the real burden of the responsibility to exercise reasonable care, in my view, required the defendant to refuse categorically to let the car be driven in that condition. It was his right to do that, as he acknowledged. It would have been apparent to a reasonable person in the position of the defendant that there was a high risk that the harm would occur if the car were driven in its unroadworthy state in the conditions that prevailed and that risk could materialise even if a warning had been given. The harm that might occur if the car crashed or hit another vehicle or ran off the road was of a serious nature. There was no other relevant matter that needed to be considered before liability could be found.