Sangha v Baxter

Court of Appeal (NSW)|2007-09-28|Before: Ipp JA, Campbell JA, Young CJ

JUDGMENT OF: Ipp JA at 1; Campbell JA at 27; Young CJ in Eq at 28

DECISION: (1) The appeal is upheld; (2) The judgment and orders made by the trial judge are set aside; (3) The matter is remitted to the District Court for retrial; (4) The respondent to pay the appellant's costs of the appeal; (5) The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled; (6) The costs of the trial to be determined by the trial judge at the remitted trial.

CATCHWORDS: APPEAL AND NEW TRIAL- When appeal lies- Error of law- Failure to give adequate reasons for decision- Appeal in negligence action- Appellant raised defences of self-defence, criminal enterprise and contributory negligence at trial- Primary judge largely rejects defences- Judge gives reasons seemingly without aid of transcript- Omits reference to significant parts of evidence- Held judge failed in reasons to properly engage with appellant's case- New trial ordered. TORTS- Negligence - Contributory negligence- How assessed- Primary judge erred in principle- Apportionment of liability revised. TORTS- Negligence- Miscellaneous defences- Illegality of plaintiff's activity- Discussion of Civil Liability Act, s 54- Damages not awarded if plaintiff injured following his committing a serious offence- Injury follows offence if clearly associated with it in time, place and circumstances.

LEGISLATION CITED: Civil Liability Act 2002, ss 5R, 52, 53, 54

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Consolidated Broken Hill v Edwards (2005) Aust Torts Rep 81-815 Gala v Preston (1991) 172 CLR 243 Godbolt v Fittock (1963) 63 SR (NSW) 617 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 CASES CITED: Re Lean (1993) 66 A Crim R 296 Smith v Jenkins (1970) 119 CLR 397 Teper v The Queen [1952] AC 480 Vairy v Wyong Shire Council (2005) 223 CLR 422 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Zecevic v DPP (1987) 162 CLR 645

PARTIES: Balraj Sangha (Appellant) Peter Marshall Baxter BHNF Laurna Baxter (Respondent)

COUNSEL: M Williams SC and R O'Keefe (Appellant) D Wheelahan QC and K Andrews (Respondent)

SOLICITORS: Vardanega Roberts (Appellant) Keddies (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40097/07

IPP JA CAMPBELL JA YOUNG CJ in EQ

Friday 28 September 2007 SANGHA v BAXTER Judgment

1 IPP JA: I have had the benefit of reading the draft reasons of Young CJ in Eq. I shall not refer to the facts set out in his Honour's judgment save to the extent necessary to explain the conclusions to which I have come. 2 The respondent was seriously injured when the taxi, owned by the appellant and driven by Mr Nagra, reversed over him. 3 The appellant raised three defences to the respondent's claim. The first was based on s 52 of the Civil Liability Act 2002 (NSW) (which is headed "No civil liability for acts in self-defence"). The second was based on s 54 (which is headed "Criminals not to be awarded damages"). The third was based on the contention that the respondent was guilty of contributory negligence. 4 At about 4.00 pm on 5 July 2005, the respondent, who had been at an hotel since 11.00 am, got into the appellant's taxi. There was quite a strong smell of alcohol about the respondent and he was clearly affected by alcohol. There were some words between Mr Nagra and the respondent as to the directions in which Mr Nagra was to drive. While this was occurring, the respondent grabbed the steering wheel. He then grabbed Mr Nagra's neck and ripped his shirt and jumper. The respondent punched Mr Nagra and said words to the effect, "I will kill you". All this happened "up to and shortly after stopping in Malouf Place". While the taxi had stopped in Malouf Place, the respondent punched Mr Nagra on more than one occasion in the face. 5 In the light of the defences raised, what occurred after the respondent got out of the taxi in Malouf Place was crucial. It was, therefore, important that the judge make specific factual findings dealing with what transpired. 6 The judge said that he could not accept "part of" the evidence of Mr Nagra, but did not specify which part. His Honour said that he had no reason to reject Mr Nagra's "earlier evidence". The facts stated in [4] above are derived from the appellant's earlier evidence and these, as appears from the judge's reasons, his Honour accepted. I infer from his Honour's reasons, however, that he did not accept that part of Mr Nagra's evidence that related to the period after the respondent left the taxi. He did say, however, that Mrs Jones was "an excellent witness". 7 Mrs Jones saw "somebody leaning into a taxi", the passenger's door was open and she could see "commotion going on" inside the cab. A person was leaning in through the front passenger door. Thereafter, the taxi reversed for about two feet. The effect of this act by Mr Nagra was as Young CJ in Eq observes (at [32]): "The person lost balance and his left hand grabbed the passenger door. His right hand was on top of the roof." The next thing that happened, according to Mrs Jones, was that the person "leaned back into the taxi" and she saw another "[c]ommotion". Mrs Jones then saw a repeat of the sudden reversal manoeuvre for about the same distance as before, followed by a stop. The person concerned fell, regained his balance, stood upright and, according to Mrs Jones, "[w]ent back into the taxi" for the third time. The passenger door was still open. The taxi reversed very quickly and ran over the person concerned. 8 On these facts alone, an inference is capable of being drawn that, after the respondent had first got out of the taxi, on three occasions he went back to it, leant inside and behaved in a threatening way to Mr Nagra. In the light of the defences raised, it was necessary for the judge to examine the particular evidence relating to these matters with care and to make specific factual findings as to what occurred by reference to the relevant evidence. 9 There was other evidence that bore on the period after the respondent emerged from the taxi, namely, that of the Travis sisters, Jaime-Lee and Hayley. 10 Hayley Travis was in Mrs Jones' house with her sister, Jaime-Lee, her mother and Mrs Jones. She went outside to look for a friend, saw the taxi and heard some yelling. Her sister suggested that they go back inside, but Hayley looked back and saw "just punching and stuff like that" inside the taxi. She could not say how much punching occurred as she said that it was "hard to tell through the windscreen". 11 Jaime-Lee Travis said that she saw the taxi, heard "yelling noises", saw "punching or whatever" and then told Hayley to go inside quickly. The two girls went inside and told Mrs Jones what they had seen. Mrs Jones went outside, returned and said, "[r]ing the police". The girls' mother, who was present, telephoned the police. Jaime-Lee Travis went outside again. She saw the respondent "outside of the taxi". She said that he was "trying to get back in and they were like still punching and that going on". 12 The evidence of the Travis sisters (both independent witnesses) was highly relevant to each of the three defences the appellant raised. Moreover, it supported important testimony of Mr Nagra. In cross-examination, Mr Nagra stated that, when the respondent left the cab, "[h]e was trying his hard [sic] to punch me". Mr Nagra said: "[h]is punches didn't land on my body but he tried". 13 It was, therefore, incumbent upon the trial judge to give due consideration to the Travis sisters' evidence and make findings as to whether that evidence was reliable or not. 14 His Honour did not, however, say anything about that evidence save to note that the sisters observed some punching in the taxi. His Honour then said: "But the best evidence in this case and in the end, as I understand the submission from both the plaintiff and the defendant, is that the evidence I should rely on came from Devina Jones who was an excellent witness". 15 If, by these remarks, his Honour was intending to convey that the appellant did not rely on the evidence of the Travis sisters, and relied only on that of Mrs Jones, he was under the wrong impression. Senior counsel for the appellant, at the trial, submitted to his Honour: "The fact of course is that the independent evidence of Mrs Jones and the girls is that the plaintiff was trying to get back in the car repeatedly right up until he fell and there's only one reason that was going on. Your Honour it all comes back to your Honour's evaluation of what parts of which bit of evidence is acceptable and the conclusions we submit will be drawn by what logically fits". 16 It may, indeed, be so that the best evidence in the case was that of Mrs Jones, but there is nothing apparent from the transcript to suggest that the evidence of Jaime-Lee Travis and Hayley Travis was anything other than honest and reliable. Nevertheless, his Honour appears to have had no regard to it. At the least, there is nothing to suggest that he did have regard to the Travis sisters' evidence and his observation that both the appellant and the respondent submitted that the evidence he should rely on was that of Mrs Jones suggests that, acting under a mistaken impression, he deliberately disregarded their evidence. 17 The judge's approach to the Travis sisters' evidence became particularly important when his Honour dealt with s 54 of the Civil Liability Act. In this regard, in rejecting the defence based on s 54, his Honour said: "I accept that, prior to the incident, there was at least an assault and I accept that the driver was frightened and fearful. I find that the taxi had then stopped and that the passenger, the plaintiff, had got out of the taxi. There was no assault occurring at the time of this incident and that is clear on the evidence before me."

And: "Because what I have here is a situation where the assault has ceased, at the worst there was a verbal argument and then the driver elects to drive in the way he did knowing that it puts the plaintiff substantially at risk of serious injury." 18 His Honour found that, when the respondent got out of the taxi, the potentially criminal conduct of the respondent "had finished, that is, the assault". Thus, he found that s 54 did not apply. 19 On the evidence of the Travis sisters, coupled with that of Mrs Jones, it was, however, open to his Honour to make findings that throughout the period between the time the respondent got out of the taxi until the appellant began to reverse for the third time, the respondent was threatening the appellant in a frightening way and attempting to assault him by punching him. As I have observed, however, the judge made no reference to this evidence. 20 During the period that the respondent was leaning into the taxi through the open door, a packet of cigarettes and a newspaper belonging to him were on the floor of the taxi on the passenger side, and some cigarettes and a lighter belonging to him were on the passenger seat. It is open to conjecture that a reason for the respondent returning to the taxi on the three occasions and leaning into it was to retrieve possession of these articles. But the judge made no finding in this regard and did not discuss this aspect of the case. 21 On its face, the respondent's conduct in going back to the car on three occasions, despite Mr Nagra having twice attempted to shake him off by reversing for a couple of feet, invites the question: what was his purpose in doing that? When regard is had to the evidence of the Travis sisters, the inference is available that he was trying to get back into the taxi to punch the appellant. Whether that inference is actually drawn depends on the totality of the evidence that a trier of fact accepts. 22 The judge's omission to deal in one way or another with the evidence of the Travis sisters and the other evidence supporting the appellant's case that the respondent was attempting to assault Mr Nagra and that he was in fear of his life at the time he reversed gives rise to the inference that he misunderstood the possible significance of that evidence, or overlooked it, or, at the least, failed to give consideration to it: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 443 per Meagher JA). The judge's reasons did not engage properly with the case presented by the appellant. To repeat what this Court said in Whalan v Kogarah Municipal Council [2007] NSWCA 5 (at [40]): "The omission on the part of his Honour to deal with so much material evidence denied 'both the fact and the appearance of justice having been done' (per Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728). To paraphrase Samuels JA in that case, this has worked a miscarriage of justice, has produced a mistrial, and is reviewable on appeal." 23 I should add that senior counsel for the respondent submitted that, irrespective of any problem with the judge's reasons, it would not be open to a court to find for the appellant on any of his defences as Mr Nagra denied that he had attempted to shake off the respondent by reversing the taxi. I do not accept this proposition. The judge did not accept that part of the appellant's case and found that Mr Nagra had reversed in the way I have described. It then became the judge's duty, on the facts found by him, to determine whether any of the defences were made out. 24 I would add that, on any basis, the evidence of the Travis sisters (and the evidence of Mr Nagra and Mrs Jones consistent with their evidence) is highly relevant to the issue concerning s 52 and the issue of contributory negligence. 25 The factual issues that need to be resolved involve matters of credibility. It is not possible for this Court to make the necessary findings. The case should be remitted to the District Court for retrial. 26 I propose the following orders:

(b) The judgment and orders made by the trial judge are set aside.

(d) The respondent to pay the appellant's costs of the appeal.

(e) The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

(f) The costs of the trial to be determined by the trial judge at the remitted trial. 27 CAMPBELL JA: I agree with Ipp JA. 28 YOUNG CJ in EQ: This is an appeal from his Honour Judge Garling in the District Court who was dealing with a claim by the respondent for damages for personal injury. His Honour was only dealing with the question of liability. He found a verdict for the respondent, but discounted the verdict by 25% for the respondent's contributory negligence. 29 The incident in which the respondent was injured took place on 5 July 2005 in Malouf Place, Doonside. The appellant owned a taxi which was being driven at the time by a Mr Nagra. 30 The respondent had been drinking for most of the day and had hailed the appellant's taxi to drive him home. The respondent had made the driver take a couple of detours. When the taxi arrived in Malouf Place, the driver demanded more than the $7 which the respondent had been accustomed to paying. The respondent became belligerent and, as the learned primary judge found, he grabbed the driver's neck, ripped his shirt and jumper and said to the driver, "I will kill you." He started to punch the driver, the driver said he was very scared and thought he was going to be killed. The taxi stopped and the respondent appeared to get out of the taxi. However, it is clear that he did not remove the whole of his person from the taxi. 31 What happened was described by a Mrs Davina Jones, whom the judge called an excellent witness. Mrs Jones said that she was in her home in Malouf Place when Jamie-Lee Travis, a friend of her daughter's who lived in the same street and was visiting, told her something and she went out the front of her home. 32 She saw a taxi parked on the far side of the road. She said she could see somebody leaning into the taxi through the open passenger's door and she said, "what I could see was commotion going on … inside the cab." She then saw the taxi move in reverse about two feet. The person lost balance and his left hand grabbed the passenger door. His right hand was on top of the roof. He regained his balance and was standing upright and leant back into the taxi. She then saw more commotion though she couldn't see what was actually going on inside the taxi. The taxi then repeated the small reverse movement and stopped. Again, the person lost his balance and then regained it. 33 Mrs Jones then said, "It's just a repeat action the left arm on the door, passenger's door. The right was up on top of the roof of the taxi, regained the balance and was upright again." She then gave evidence that the man then went back into the taxi a third time and then the taxi moved backwards very quickly and the man went under the open passenger door. 34 There is no doubt at all that as a result of the incident the respondent was badly injured including suffering some brain damage. 35 The learned judge heard the case on 30 and 31 January 2007 and gave judgment on 8 February 2007, apparently without the benefit of a transcript. 36 The appeal was heard on 31 July 2007, Mr M Williams SC and Mr R O'Keefe appearing for the appellant, and Mr D Wheelahan QC and Mr K Andrews appearing for the respondent. 37 Mr Williams complains that the learned judge's summary of the facts omitted some vital matters, probably because he did not have the benefit of a transcript. For instance, the learned primary judge does not refer at all to there being any commotion. 38 The respondent had no memory of the day. 39 The taxi driver gave a version of what happened, but the learned judge declined to accept that version. 40 However, two young ladies, Jamie-Lee Travis, then 12, and Hayley Travis, then 14, gave evidence. The judge said at Red 16 that Jamie-Lee Travis saw punching in the taxi and Hayley Travis also saw some punching in the taxi. He did not say whether he accepted this evidence or not, but passed straight on to saying that Mrs Jones was an excellent witness. 41 One might be tempted to say that the judge impliedly did not accept Jamie-Lee or Hayley Travis, but if he took this attitude it is odd because he expressly said that the taxi driver was not a good witness and the evidence about the punching was consistent with Mrs Jones' evidence as to the commotion which was not referred to by the learned primary judge. 42 Hayley Travis said: "We saw a taxi but I didn't really pay attention and then I heard some, like some yelling and some and so on and Jamie-Lee sort of knew what was going but I didn't because I wasn't paying attention and then she suggested that we go inside and then I looked back and I could just see like some motion like in the taxi and then we went inside to inform the parents." 43 She was then asked: "What sort of motion could you see going on inside the taxi?" "A. I don't know, just sort of, just punching and stuff like that." "Q. How much punching?" "A. It was hard to tell through the windscreen." 44 Jamie-Lee Travis said: "I saw the taxi and I just saw yelling noises and punching or whatever, so I just said 'Hayley quick go inside'." "Q. Where was the punching taking place?" "A. It was just next to the car park sort of thing near their house." "Q. And who was punching who?" "A. I don't really - I didn't really see that much." "Q. "Whereabouts was the punching taking place?" "A. I don't know just like in the car, in the taxi." 45 Accordingly, all the independent witnesses gave evidence of there being some sort of commotion. One might have thought that a trier of fact could have made some observations about whether people on the opposite side of the road could really see very much, but the learned judge made no such comment. However, all witnesses were agreed that there was a commotion. Whether that commotion was from punching or from the respondent yelling at the taxi driver or the taxi driver yelling at the respondent, there is no material to assist. 46 At p 19 of the Red Book the learned primary judge said: "In Malouf Place I find that the plaintiff punched the driver on more than one occasion and those punches were to the facial area. I accept that, once the plaintiff got out of the taxi which he did at Malouf Place, there was no further punching or assaults on the driver. The plaintiff was standing on the road next to the taxi with the passenger door opened and holding the door. … The third time the driver reversed back quite suddenly for a much more significant distance knocking the plaintiff to the ground. As a result the plaintiff sustained serious injury … I accept that the driver knew that if he reversed in the way he did the plaintiff could be injured, could suffer serious injury or death. I accept the driver was scared, at least prior to this occurring, and had a fear of further injury." 47 At p 26 of the Red Book the learned judge said: "What I have here is a situation where the assault has ceased, at the worst there was a verbal argument and then the driver elects to drive in the way he did knowing that it puts the plaintiff substantially at risk of serious injury." 48 Mr Williams says that this is not a case where the findings of fact made by the primary judge from which the appellant appeals were based on credibility or demeanour raising a scenario which would cause an appellate court to be reluctant to intervene in accordance with established principles. Rather, the judge made it clear that he accepted Mrs Jones and the defect in his fact-finding lay in his failure to evaluate in his judgment all of the evidence bearing upon the relevant issue of fact. 49 The presiding judge put to Mr Williams (T11) that this was not a case where the primary judge has ignored evidence, because he actually referred to the evidence, but rather a case where the primary judge had set out the evidence and simply not accepted it. Mr Williams would not accept that. His submission was that the trial judge was just not seized of what the evidence was from the witnesses whom he accepted. He puts that the judge's conclusion about the cessation of the assault just cannot stand against the evidence of Mrs Jones and the Travis girls. 50 Mr Williams puts that the clear inference from the evidence of Mrs Jones and the Travis girls was that: "After first stepping out of the taxi the respondent re-entered the taxi on two occasions. Each time he re-entered the taxi the respondent continued to punch at Mr Nagra's face up until he reversed suddenly whereupon the respondent was injured." 51 However, to reach some such conclusion one would have to accept the evidence of the Travis girls as Mrs Jones herself did not mention any punching, merely a commotion. There is a fair bit of doubt as to what attitude the primary judge took to the Travis girls' evidence. It is strange that he does not say that he either accepts or rejects them, but the fact that he says, after reciting their evidence, that Mrs Jones was the most reliable witness seems to suggest that he did not accept them entirely. 52 When this was put to Mr Williams he said that even if the case rested only on Mrs Jones' evidence, there was still manifest error because Mrs Jones said there was a commotion and that the respondent lent into the taxi on three occasions. The judge did not refer to those three occasions, and indeed, his summary of the facts in Red 19, which I have already set out, suggests that once the plaintiff got out of the taxi there was no further punching or assaults on the driver. That gives the flavour of the respondent getting out of the taxi once and only once and not re-entering it. However, the "no further punching or assaults" was quite consistent with Mrs Jones' evidence (though not with that of the Travis girls) because all she could remember was "seeing a commotion". 53 When dealing with contributory negligence at Red 28, the learned primary judge said: "What happens is there is this assault, there is the argument, there is obviously an ongoing dispute. The plaintiff elects to stand where he stands and must have known if the vehicle reversed he was in a position of danger." 54 This seems to suggest that the judge accepted the fact that there was still a simmering of the dispute between the respondent and the driver at the time when the injury occurred. This is consistent with Mrs Jones' evidence. 55 Although it is odd and (it may be explicable by the fact of the lack of a transcript) that the judge did not refer in greater detail to Mrs Jones' evidence and it is odd that he did not expressly accept or reject the Travis girls' evidence, it does not seem to me that there is sufficient flaw in his Honour's exposed reasoning process for this Court to interfere with his fact-finding exercise. 56 I need not discuss this point in more detail as my brethren consider that the primary judge's fact-finding process was irredeemably flawed. 57 My view means that I must pass to the other three points in the case, namely: (A) the defence of self defence; (B) the defence of criminal enterprise; and (C) contributory negligence. I will deal with these seriatim. 58 (A) Section 52 of the Civil Liability Act 2002 says that a person does not incur a liability arising from any conduct of the person carried out in self defence if the conduct to which the person was responding was unlawful and the conduct was a reasonable response in the circumstances as he or she perceived them. Certain other conditions and qualifications apply, but it is unnecessary to deal with these. 59 The learned judge says at Red 20 and following on this issue that it was very significant that the taxi driver never ever said in evidence that the reason why he moved the taxi was because he was in fear and needed to get away from the respondent. The judge said: "He didn't ever say that because his evidence was to the effect that that did not happen."

The judge then said: "Self-defence, it seems to me, requires an element that the person who is defending themself believes, rightly or wrongly, that they are acting in their own self defence. That is, what they did they did to defend themself because of fear. There is no direct evidence of that here and, indeed, if one looks at the wording of the section and the last part is that the conduct is a reasonable response, in the circumstances as he or she perceives them. There is no evidence of what was perceived at the time." 60 The respondent said that the appellant bore the onus of proving self defence and just did not discharge it. However, the appellant says that the learned primary judge failed to consider the fact, which was clearly established, that the appellant was reacting to conduct which was unlawful. Furthermore, his Honour failed to deal with the evidence that the taxi driver had given at Black 73 and 98. 61 At Black 73 the driver said: "He got out of the car and I moved my car and left my car a bit. Honestly speaking, at that time I was very scared and frightened. I thought he might pick up rock, stone, brick or something and he can attack on me again. … Then I parked my car in a safe location and I saw he was lying on the ground." 62 At 96, in cross-examination, the driver was asked whether he saw the respondent making an attempt to retrieve his articles from the taxi after he had alighted. The driver said: "I did not see him after he got out of the cab, I didn't know where he went and I was thinking perhaps he's gone to grab something to assault me. … I reversed my car and parked it at a safe place, that was the moment when I saw him lying on the ground." 63 At 98 in re-examination the driver was asked: "When he was assaulting you in Malouf Place, you've told us you were scared, you thought you were going to get killed, what did you want to do?"

to which the answer was: "I was wanting and hoping to move, move away from that place to a safe place where I can seek some assistance." 64 The evidence which I have just set out, if accepted, would indicate that when he thought the respondent was out of the taxi the driver was concerned that he was in danger because he was in the respondent's home street, the respondent might pick up a rock and the driver would have no support so that he should drive to somewhere where the respondent would not have "mates" who might join with the respondent in a renewed attack. 65 It is true that the learned judge did not actually rule on that material. However, generally, the judge did not accept the driver's evidence, though he did accept that he was scared. At Red 18 the learned judge said, somewhat enigmatically, that whilst he could not accept part of the driver's evidence: "I have no reason to reject his earlier evidence, not only was it consistent, it was consistent with what others saw. … ". 66 I think part of the earlier evidence to which his Honour referred was that the respondent had started to punch the driver, that the driver was very scared and thought he was going to be killed, that the taxi stopped, the plaintiff got out and the driver moved his taxi. 67 It seems that the judge accepted that the driver was scared. However, he rejected the self defence claim on two principal bases: (a) that as the driver had not actually said that he was in fear and that he perceived danger from which he must defend himself, the actual fact was that he did not see where the respondent was. Indeed (had the judge accepted all his evidence) the driver thought that the respondent was away from the cab about to pick up a rock or brick. 68 The second reason why the judge rejected the defence was that he did not consider in all the circumstances that it was reasonable to drive away with (as must have been the case despite the driver's denial) the passenger still holding on to part of the cab. The judge said that a more sensible reaction would have been to have got out of the cab and run. 69 One can understand the judge saying this, even though one might personally think that if the scenario was as the driver said he perceived it, he would not be safe in doing so because he may have been pursued by young and vigorous colleagues of the respondent. 70 Mr Williams made the point that it does not necessarily cease to be self defence merely because excessive force is used; see Zecevic v DPP (1987) 162 CLR 645 and Re Lean (1993) 66 A Crim R 296. That point, however, does not loom large in the instant case even though the force that was used caused considerable damage to the respondent. 71 At Red 23, the learned primary judge said that he could have drawn the inference that the reason the driver acted in the way he did was because he was scared and this was a way of defending himself. However, he found that there were equally compelling inferences, including the fact that the driver just got angry and annoyed and, accordingly, he found it impossible to say that what the driver did was done in self defence. This was within the mandate left to the trial judge to determine the facts. Accordingly, in my view, the defence based on s 52 fails. 72 The appellant also raised s 53 of the Civil Liability Act which provides that if the defendant would have a defence under s 52 but for the fact that the conduct was not a reasonable response, then the court nevertheless is not to award damages unless it is satisfied that the circumstances of the case are exceptional and that in the circumstances of the case, a failure to award damages would be harsh and unjust. 73 However, because of my findings on the self defence point, s 53 does not arise. 74 (B) The next problem is how far s 54 of the Civil Liability Act affects the verdict. That section is headed boldly "Criminals not to be awarded damages". It then proceeds as follows: "1. A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. 2. This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence)."

The remaining parts of the section do not need to be considered. 75 There is no doubt that the respondent's action in punching the taxi driver and ripping his clothes was a serious offence. It is also clear that the damage to the respondent occurred following that person's conduct in committing a serious offence. Accordingly, the appellant says the defence should have succeeded (I am oversimplifying his submissions but that is what it amounts to in the long run). 76 The learned judge said at p 25 of the Red Book: "I accept that, prior to the incident, there was at least an assault and I accept that the driver was frightened and fearful. I find that the taxi had then stopped and that the passenger, the plaintiff, had got out of the taxi. There was no assault occurring at the time of this incident and that is clear on the evidence before me." 77 The learned judge then said that he had the same problem as with self defence, that it is very difficult to know what was in the driver's mind at the time. Was he attempting to escape because he was fearful or for some other reason. 78 The judge then referred to what the Premier had said when he introduced the Bill which included: "People who engage in such criminal conduct, that is, entering a dwelling house, breaking and entering, escaping lawful custody, should not sue for slipping over while they do so." 79 The learned judge then said: "That seems … to indicate that it was enacted for a different reason to this. Because what I have here is a situation where the assault has ceased, at the worst there was a verbal argument and then the driver elects to drive in the way he did knowing that it puts the plaintiff substantially at the risk of serious injury." 80 The judge then said that he was unable to find that those acts fit into s 54, nor could he find that the conduct contributed materially to the injury. The conduct had finished at the time of the assault. 81 Some serious offences take place at a definite point in time. Even in the case of a theft, it takes place at the time of the asportation so that if a thief has put the silverware in his sack he has committed the offence and if he slips on the way getting out of the window making his escape, then that injury has not been committed in the course of the crime, but, one would think (especially if one took into account what the Premier said when introducing the Bill) that that was sufficiently related so that it came within the words in the section "following conduct of that person." 82 The same flavour comes through cases where, under the common law, there was a defence of joint illegal enterprise. Admittedly, there is a distinction because one is there dealing with an enterprise rather than the commission of an offence and an enterprise can cover probably a greater period of time, it is appropriate to look at cases involving that defence to see its scope. 83 In this Court, in Godbolt v Fittock (1963) 63 SR (NSW) 617, the plaintiff and the defendant had stolen some cattle and were driving them to market when the defendant ran off the road and injured the plaintiff. The Full Court held that the defence applied. It is to be noted that the stealing of the cattle had finished some time before and that the motor accident really had little to do with the theft. This is probably the best example of the point though cases like Smith v Jenkins (1970) 119 CLR 397 and Gala v Preston (1991) 172 CLR 243, where the parties had previously stolen a car and were joy riding in it at the time of an accident in which the plaintiff is injured, should also be looked at. 84 It seems to me that it cannot be that every action after someone has committed a serious offence can be caught by the words "following … ". Just where the cord must be cut is unclear. It may be that if one were to set down a test one would do it in similar words to those of Lord Normand in the Privy Council in Teper v The Queen [1952] AC 480, 487 (a res gestae case) that the injury must occur "if not absolutely contemporaneous with the" crime then "at least so clearly associated with it, in time, place and circumstances" that it can be considered part of the criminal conduct. 85 It seems to me that whatever the exact test one applies, on the facts found by the learned judge in the present case the injury did not occur following the commission of a serious offence by the respondent using the word "following" in the sense that I have outlined. 86 This being so, it is unnecessary to consider the arguments that were put on s 54(2), that is, that the appellant's own conduct was an offence and accordingly. s 54(1) did not apply. However, I will record that the principal argument was that the word "defendant" in s 54(2) meant a personal offence by the person who had been sued by the plaintiff and did not cover the situation as here where the defendant sued was vicariously liable for the tort of another person. 87 Accordingly, s 54 does not provide a defence in this case. 88 (C) Finally, I have to consider the question of contributory negligence. On this, the learned judge said at Red 27-8: "I believe there is contributory negligence. The plaintiff put himself into this position by his behaviour, that is, by his earlier behaviour he created a situation where the driver of the taxi was either very fearful, very upset or, certainly, very annoyed and with good reason. The plaintiff then elected not to get out of the area but elected to remain close to the taxi. For what purpose I am not sure. … The plaintiff elects to stand where he stands and must have known if the vehicle reversed he was in a position of danger. He then gets two warnings. The taxi reverses a short distance, twice. On each occasion he is clearly warned that he is in danger. … . He still elects to remain in the area … but he knew or should have known, in my view, when you take what was happening and the heat of what was going on, that there was every chance the taxi driver may continue to react in the way he did … ".

However, his Honour found that the major liability had to rest with the driver and found the plaintiff 25% responsible for the damage. 89 In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494, the High Court said 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, ie of the degree of departure from the standard of care of the 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."

The Court also said earlier in the judgment that the decision "involves an individual choice or discretion, as to which there may well be differences of opinion by different minds" and thus a finding is not to be lightly reviewed. However, if the primary judge has made an error in principle, then the decision is removed from the category of a discretionary judgment strictly so called. 90 Section 5R of the Civil Liability Act 2002 provides that the principles applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm. 91 In Consolidated Broken Hill v Edwards (2005) Aust Torts Rep 81-815 at 68,020, Ipp JA with whom Giles JA and Hunt AJA agreed, noted that this section reflects the fundamental idea that people should take responsibility for their own lives and safety as well as reflecting the concepts expressed by Callinan and Heydon JJ in Vairy v Wyong Shire Council (2005) 223 CLR 422, 483, where their Honours said: "The 'duty' to take reasonable care for his own safety that a plaintiff has is not simply a nakedly self-interested one, but one of enlightened self-interest which should not disregard the burden, by way of social security and other obligations that a civilised and democratic society will assume towards him if he is injured. In short, the duty that he owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realised." 92 Although the learned primary judge said that the plaintiff's behaviour contributed to his injuries, it does not seem to me, with respect, that his Honour fully grappled with all the factors that go into an assessment of whether there has been contributory negligence and for how much that are to be considered under s 5R and the authorities to which I have just referred. 93 The appellant says that that is certainly the situation and, moreover, that those factors lead to a 100% apportionment of contributory negligence against the respondent. 94 Paragraph 105 of the appellant's submissions in the Orange Book p 25, list 11 factors which should have pointed the judge to a 100% responsibility by way of contributory negligence in the respondent. Some of these depend on this Court disturbing the judge's findings of fact. Ignoring these, the principal points made are: (i) it was the respondent who alone created the situation wherein the potential for injury was brought into existence; (ii) the respondent was intoxicated to a considerable extent; (iii) it is clear that the respondent at least once had assaulted the driver who had done nothing to provoke him (except to ask for a fare higher than what the respondent expected); (iv) the respondent without any justification put the driver in fear of his life; (v) the entire situation was of no making of the driver; (vi) the act of reversing was undertaken in a situation forced upon the driver, one calculated to deprive the driver of the opportunity of considered reaction and one further calculated to engender panic. 95 Counsel for the respondent says that the judge did not make any finding as to the level of the respondent's intoxication. All he said at p 18 of the Red Book was that: "I do not have any evidence before me as to the actual state of the plaintiff's sobriety although he was clearly affected by alcohol." 96 I agree with the submission that the learned trial judge did not take into account all the factors he should have taken into account when assessing contributory negligence and, accordingly, it is open to this Court, despite what was said by the High Court in Podrebersek to examine the situation for itself. 97 In my view the driver was clearly negligent in taking the action he did. He would appear not to have seen that the respondent was still attached to the vehicle when he reversed despite the two previous small reversals. On the other hand, in my view, the respondent was far more at fault for failure to care for himself by what he did than the learned judge assessed. I would assess contributory negligence at 50%. 98 It follows that the appeal on liability must be dismissed. However, the appeal, so far as it relates to contributory negligence, should be allowed with the result that the verdict and judgment for the respondent made by the learned District Court judge is to be reduced by 50% for contributory negligence in lieu of the 25% reduction ordered by the learned primary judge. 99 As both parties have been partially successful, the question must be posed as to what is the proper order as to costs. 100 In my view, the primary focus of the appeal was on the judge's findings of fact and the defences under ss 52-54 of the Civil Liability Act on all of which the appellant failed. In the circumstances I consider that the appellant should pay two-thirds of the respondent's costs of the appeal. 101 I would propose then the following formal orders:

(2) Verdict and judgment for the respondent be reduced for contributory negligence by 50% in lieu of the 25% fixed by the learned trial judge.

(3) The appellant is to pay two-thirds of the respondent's costs of appeal.

(4) The costs order below not to be disturbed. 102 However as my brethren have other views, I agree that the judgment of the Court must be as noted by Ipp JA.

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Suitors' Fund Act 1951(NSW)

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Judgment (27 paragraphs)

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Cases Cited (8)