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  • Unreported Judgment

Simpson v Grundy

 

[2011] QSC 299

Reported at [2013] 2 Qd R 384

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

6 October 2011

DELIVERED AT:

Brisbane

HEARING DATES:

20, 21 and 22 June 2011

JUDGE:

Dalton J

ORDER:

Judgement for the defendant against the plaintiff

CATCHWORDS:

Negligence; occupiers’ liability; duty to supervise child; presence of parent influencing standard of care owed by third party; country children driving; contributory negligence where plaintiff a child.

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

Carlisle v Mullrai Pty Ltd [2000] NSWCA 190

Commissioner for Railways (NSW) v Cardy (1959-1960) 104 CLR 274

David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185

Doubleday v Kelly [2005] NSWCA 151

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317

Hetherington v Belyando Shire Council and Anor [2006] QCA 209

Lipman v Clendinnen (1932) 46 CLR 550

McHale v Watson (1964) 111 CLR 384

Northern Sandblasting Pty Ltd v Harris (1996-7) 188 CLR 313

Phipps v Rochester Corporation [1955] 1 QB 450

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34

Rabbit v Roberts, unreported decision, SASC (Full Court) 11 December 1996

RTA v Dederer (2007) 234 CLR 330

Shellharbour City Council v Rigby and Anor [2006] NSWCA 308

Smith v Leurs (1945) 70 CLR 256

Tame v New South Wales (2002) 211 CLR 317

Vairy v Wyong Shire Council (2005) 223 CLR 422

Waverley Council v Ferreira [2005] NSWCA 418

Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

Mr G Mullins for the plaintiff

Mr S C Williams QC with Mr E J Williams for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff

Jensen McConaghy for the defendant

[1] DALTON J:  The plaintiff, Debbie-Jo Simpson sues the defendant, Mr Lindsay Grundy.  Mr Grundy owns a property, Avenal, of around 900 acres near Jandowae.  He lived there with Mrs Christine Isles and Mr Tom Edwards, and had done for many years.  Over the years, Mrs Isles’ daughter, Priscilla Lorne, and her children – the plaintiff and her brother, Sam – had spent a deal of time at Avenal.  The children called Mr Edwards Grandad, and the defendant Uncle Lindsay, even though there was no biological relation between them and either of these gentlemen. 

[2] On Christmas Day 2005, Priscilla Lorne, her second husband Tony Lorne, DebbieJo and Sam, and their younger half-siblings, had lunch with Mr Grundy, Mrs Isles and Mr Edwards at Avenal.  Also present was Priscilla Lorne’s sister.  Debbie-Jo was 17 years old, Sam had just turned 13.  After the main course, Debbie-Jo and Sam went for a drive in an automatic Bluebird car which was kept at the property.  Debbie-Jo drove only a short distance on an internal dirt road on the property before overturning the car and injuring herself.

[3] Some important facts were not in issue:  the dirt road was not in a dangerous state – it was flat, straight and well-formed.  There was nothing wrong with the Bluebird. The accident occurred because the plaintiff drove too fast.  There was no suggestion that anyone was affected by alcohol.  The plaintiff did not wear a seatbelt and was thrown from the car when it overturned.  Her brother wore a seatbelt and was not seriously hurt. Quantum was agreed at $200,000, making no allowance for contributory negligence which remained in issue.  However, because there was quite disparate evidence given by various witnesses as to other matters, it is necessary for me to make findings as to credit.  I make general observations as to credit before descending to the detail of the conflicting evidence.

 

Credit of Witnesses

[4] Debbie-Jo’s suing Mr Grundy has fractured the extended family.  Since the accident Priscilla Lorne and her children have not visited Avenal.  Mrs Isles has no contact with her daughter, Priscilla, or with her grandchildren.  Priscilla and Tony Lorne, and the plaintiff’s brother Sam, gave evidence for the plaintiff.  Mrs Isles and Mr Edwards, along with Mr Grundy, gave evidence for the defendant. 

[5] Mrs Isles is a lady of advancing years, with some health problems.  She lived in Mr Grundy’s house for many years, first as a paid worker, then as a companion.  For many years she lived there rent free, but making a contribution to groceries, house-cleaning and other property work.  Mr Grundy cared for her after she suffered serious neurological injury in 2000.  In circumstances not adequately explained in evidence, she moved to the Jandowae Caravan Park two weeks before the trial.  She said this about the suit: “we dont have anything to do with [her daughters family] now because, you know, as I said, its a rotten thing [to] do because weve been so good to them and Lindsays been so good to them.  She said Mr Grundy feared the suit would “ruin” him.  She eagerly volunteered interpretation and opinion which she supposed supported Mr Grundys case.  She unhesitatingly answered questions in a fast-paced crossexamination which I would have thought needed more consideration if they were to be answered thoughtfully or sincerely.

[6] Mr Edwards is a pensioner.  He is an unsophisticated man who can neither read nor write.  He worked hard all his life at labouring jobs.  In retirement, for many years he has lived rent free with Mr Grundy, helping him on the farm and making a contribution towards groceries for the household.

[7] Mr Grundy was 78 at the time he gave evidence.  He has a strong personality and gives the impression of having lived a disciplined, ordered life, working hard on his farming property.  He sat in Court so that he heard the evidence of all the plaintiff’s witnesses.  He engaged in commentary on that evidence in his examination-in-chief and argument with it during his cross-examination.  Mr Grundy’s personality very much dominated those of Mr Edwards and Mrs Isles.  This was evident in both the substance of, and manner of giving, their evidence, as discussed below.  Mr Grundy sat and watched them give their evidence.  It was apparent, and Mrs Isles and Mr Edwards readily conceded, that the three of them had had many discussions about this matter over the years since the accident. 

[8] The Avenal witnesses told a different story to the plaintiff’s witnesses.  The plaintiff, and her witnesses, said that before driving the car in question she asked for, and was given, permission to drive the Bluebird.  The Avenal witnesses said it was Sam who asked for, and was given, permission to drive.  For the reasons given below, I reject the Avenal witnesses’ version.  I conclude that the Avenal witnesses sought to avoid a claim by Debbie-Jo, based on her being allowed to drive, by claiming that it was Sam who was allowed to drive.  They bolstered the apparent reasonableness of that decision by extensive reference to Sam’s good driving ability, and long driving experience, and by a rather complex story to the effect that it was Sam who owned the Bluebird.

[9] The Avenal witnesses very much gave the appearance of putting forward a party line as, one after the other, they used the same words and idioms to give remarkably similar evidence.  For example, they all described Sam Simpson as proud of his car, a “steady driver”, a “sensible driver”, a “good little driver”, or a “competent little driver” at almost every available opportunity, including on occasions when the questioning did not call for an appraisal of Sam’s driving abilities.

[10] I have reservations about the evidence given by Sam Simpson.  He was 18 at the time of trial and gave evidence about events which occurred when he was 13.  I thought his evidence was sometimes honest but unreliable because he was so young at the time of the accident – he thought the car rolled nine times, whereas it rolled only once.  He seemed uncomfortable when he was asked to criticise or contradict his sister and, I thought, Mr Grundy.  He avoided having to do so by answering, “I can’t recall” and “I can’t comment” over and over again in a mechanistic way, when plainly he could have answered responsively, but did not care to.  At times I thought he was simply not telling the truth: he denied knowing what a “fishie” was, or that a driver could deliberately make a car fishtail. 

[11] I have strong reservations about the plaintiff’s evidence.  She presented as an immature young woman who gave her evidence in an artificial way.  Her evidence gave the clear impression of being tutored or tailored to suit her case.  The most unnatural example was when she was asked by her own counsel about her seeking permission to drive:

“…so I asked someone at the table not a family member, someone who wasnt family, if I could go for a drive.

Do you remember who the person was?--  No, I dont.

When you say it wasnt a family member, who are you including in the group of the family?--  Oh, so who wasnt the family, or I dont understand, sorry.

You said you asked a person who wasnt a family member?--Yes.

So who were the non-family members who were at the lunch?--Okay, non-family members were Lindsay, Nan Grandma, who is Christine, and Grandad whos Thomas.

In cross-examination she again said she could not recall from whom she sought permission to drive.  Just how she recalled it was not a family member was never explained. 

[12] The plaintiff was combative, and quick-witted, in cross-examination.  Because the quantum aspect of the case was agreed, I did not hear medical evidence as to the neurological and psychiatric injuries she claimed in the proceeding.  However, the plaintiff was far from the person described in her counsel’s opening as too impaired to change out of her pyjamas before setting off for the shops, or only just capable of  learning what side of the railway platform to stand on. 

[13] The plaintiff often declined to answer questions in cross-examination on the basis that she could not remember.  Having regard to the subject matter of the questions, I find her lack of memory extraordinary.  She claimed she had memory loss associated with the accident, which I accept.  However, I do not accept that she could not recall significant life events from years before the accident.  I note that she often asserted she could recall details associated with the accident when those details advanced her case – the recollection that she asked a “non-family member for permission to drive is one example.  She could also apparently recall that Sam reversed the car out of the shed for her, because she was unable to do so, and that the car tyres felt flat on Christmas Day 2005.  Yet her memory repeatedly failed her in cross-examination. I thought her failures of memory were selective and I treat her evidence with a high degree of scepticism.

[14] There was evidence that shortly before the accident the plaintiff had been diagnosed by a GP with bi-polar disorder and prescribed Sodium Valproate.  The existence of some psychiatric condition may account for some of the plaintiffs odd manner in giving evidence, I cannot say. 

[15] The evidence of Tony and Priscilla Lorne was the most reliable given at the trial.  Mrs Lorne gave very brief evidence, but Mr Lorne gave considerable evidence bearing on the matters I must decide.  He was called by the plaintiff but readily gave testimony which disadvantaged the plaintiff’s case, both in evidence-in-chief and cross-examination.  His answers were straightforward and responsive.  He was careful to qualify answers in cross-examination where he relied on hearsay, in a fair way.  He was not without interest in the matter – in particular, on his version of events, he gave permission for the plaintiff to drive on the day of the accident, and I was alert for signs that he was tailoring his evidence to justify that decision.  He is still married to Priscilla Lorne.  Nonetheless I felt he stood some way outside the family dynamics which affected Sam Simpson’s evidence, and which tainted the Avenal witnesses.

[16] Having made these observations about credit generally, I turn to the matters in issue on the evidence.

 

The Plaintiff’s Driving Experience

[17] The plaintiff obtained her learner’s permit in July, five months before the accident.   She initially spent some time trying to drive a manual car, but could not manage the clutch.  She was given an automatic car of her own, and had driven it with Tony and Priscilla Lorne.  Tony Lorne said he had spent about 10 hours in the car with her.  She had driven with him on dirt roads on his parents property.  He had deliberately taken her driving on Lysdale Road because it was partly bitumen and partly dirt, so she would gain experience on dirt roads.  She had driven between the towns of Wondai and Murgon at highway speed on a bitumen road.  She was competent enough in his opinion.  He said she was careful and sensible when driving with him; he could relax when he was in the car and she was driving.  Priscilla Lorne said that she had been in a car for about 20 hours with Debbie-Jo driving before the accident.  She agreed that Debbie-Jo was a safe and sensible driver.

[18] I find that the plaintiff deliberately downplayed her pre-accident driving experience and ability when comparison is made between her evidence and that given by her parents and with the statutory declaration she made in 2008.  That statutory declaration accords well with the evidence given by her parents as to her driving experience. She did eventually concede in cross-examination that she was a competent learner driver in an automatic vehicle.

[19] Mrs Isles had no first-hand experience of Debbie-Jo’s driving but said that Priscilla and Tony Lorne had told her that Debbie-Jo was a “ratbag” driver.  I reject this evidence and accept the evidence of Priscilla and Tony Lorne that the plaintiff was a competent and sensible learner driver with about 30 hours experience, including experience in driving on dirt roads.

 

Sam’s Driving Experience

[20] The Avenal witnesses spent much time explaining what an experienced and careful driver Sam was.  As stated above, and discussed below, I reject the Avenal witnesses’ evidence that permission was sought by Sam to drive.  Thus, while the evidence is not relevant to the substantial issues I determine, it is important to my thinking in making credit findings against the Avenal witnesses.

[21] Before the accident, Sam used to stay at Avenal during school holidays, independently of his nuclear family.  The Avenal witnesses all declared that Sam had been given the Bluebird by Mr Edwards.  After that, they said, he drove it every day, every time he stayed, and he washed it and changed the oil etc on a regular basis.  The evidence of all three was similar to these extracts from Mr Grundy’s testimony:

Well, he every time he come up he checked it and he pumped the tyres up, get it ready to roll and see if there was a bit of juice in it, and I know he used to vacuum the thing out and even polish it up as best he could, yeah.

…”

Now, can you tell us with what frequency that occurred before the accident?--  Well, somebody asked me, How many times has he driven the car, and I said, Oh, God.  You know, how longs a piece of string?  But its possibly - in and out of it two/three times a day for the number of times that hed come over it might add to up 40 or 50.

Yes, all right.  So when he was there on holidays hed be in and out of the car frequently?--  Frequently enough, yeah.

What would he do in it?--  What would he do with it?

 

Apart from burn your petrol in it?--  Go and get the mail, hook the trailer on, do all little jobs for you, pick up this piece of equipment that I wanted and run it up here, up to the yards or down to the house or anything like that.

Odd jobs?--  He was pretty handy like that, you know.

[22] All witnesses said that all of this activity took place after Sam was given the Bluebird. However, Mr Grundy could not say when that was. Even in examination-in-chief he became stressed and testy when pushed on this point.  In cross-examination he became more so.  He said that first Mrs Isles taught Sam to drive in her Ford, and when Sam was a good enough driver, Mr Edwards gave him the Bluebird.  Mrs Isles said she might have given Sam a lesson or two in the Ford, but his step-father’s parents taught Sam to drive on their property, she did not.  Mr Edwards said he gave Sam the Bluebird so he could learn to drive in it. 

[23] Mrs Isles’ evidence was completely unreliable as to when Sam was given the Bluebird.  She first said that the Bluebird had been on Avenal for two years before the accident.  Then she said that Mr Edwards gave the Bluebird to Sam to use on the property about three years before the accident.  Then she said Sam was given the car six years before the accident.  At another point she thought that Sam was given the Bluebird a year or six months before the accident.  

[24] In examination-in-chief Mr Edwards said he gave Sam the Bluebird a “pretty short” time before the accident.  In cross-examination he said he had only given Sam the car eight to ten weeks before the accident, when Sam had been there in the September/October 2005 school holidays.  Everyone agreed that Sam had stayed at Avenal for a short time, maybe a week, in the September/October 2005 school holidays, and had not visited again until Christmas Day 2005. 

[25] Sam said he drove the Bluebird once prior to the accident.  He put that occasion in the September/October 2005 school holidays.  He said he scared himself driving it when he nearly hit a shed.  He said he also drove a Valiant on Avenal once prior to the accident.  A series of detailed descriptions of Sam driving, and caring for the Bluebird in the presence of third parties was put to Sam in crossexamination.  He denied the suggestions, and the defendant called none of these independent witnesses.  I note that it was Sams evidence that on the day of the accident, he was the one who reversed the Bluebird out of the shed, because his sister could not manage that.  This does bespeak more driving experience than he would have gained on the two occasions he says he drove on Avenal.

[26] I have recorded the fact that the three Avenal witnesses used strikingly similar phrases to describe Sam’s driving abilities, and that they were over-eager to praise his abilities.  I find that the Avenal witnesses were being untruthful in their descriptions of Sam’s driving experience and abilities.  Their evidence did not withstand cross-examination.  Sam Simpson may have downplayed his driving experience, but I am convinced it was nothing like that put forward by the Avenal witnesses.  As noted, it is not necessary to my substantive decision to determine how much driving experience Sam Simpson had.

 

Ownership of the Bluebird

[27] Closely associated with the Avenal witnesses evidence about Sams driving experience, was their assertion that Sam owned the Bluebird.  A determination of this point is unnecessary to my conclusion about liability.  However, again I find the evidence important as to my thinking about credit.  I am of the view that the Avenal witnesses exaggerated an indulgent, childish reference to the Bluebird as Sams car into something it plainly was not, in an attempt to show that Mr Grundy did not control the use of the Bluebird.

[28] Mr Edwards bought the Bluebird, unregistered, for $400 in 2000 and kept it at Avenal. He said he did not use it, and gave it to Sam.  It required repeated questioning before Mr Edwards could reveal any concrete details about this gift, and when they emerged, they were most unconvincing. Eventually he said he gave Sam the Bluebird at the shed, where he said, “Would you like the car, Sam?”  Sam replied, “Yes thanks”.  He then gave Sam the keys and, he volunteered, never knew where Sam put them after that.  Mrs Isles said the conversation in which Mr Edwards gave Sam the car took place in the kitchen.  She and Mr Grundy were there.   Mr Grundy did not think he was there.

[29] Several times, when he was asked about giving the Bluebird to Sam, Mr Edwards answered in almost exactly the same words: that he gave it to Sam to give Sam a chance in life. This was regardless of whether the question enquired as to his motive in giving the car. The phrase was very reminiscent of Mr Grundy’s expressed motives for taking an interest in Sam: so he could get a job and be something; to get him off the dole [sic, at age 12] and do something; to get him off his backside and be something.  Like the similarity in language used by the Avenal witnesses as to Sam’s driving abilities, this similarity shows how much influence Mr Grundy had over Mr Edwards’ evidence.

[30] The Avenal witnesses said that after Sam was given the Bluebird he hid the keys as a childish sign of his ownership and control of the car.  None of them knew where the keys were.  Presumably the significance of this to the Avenal witnesses view of the litigation, is that it must have been Sam (the owner of the car) who gave the keys to his sister when she wished to drive, not any of them.  I find it very unlikely that the keys to a working car on a farming property were not in the custody of the people who might need to use that car.

[31] Sam denied he owned the Bluebird or had custody of the keys.  He said the keys hung on a rack in the dining room.  Mr Edwards could not deny they hung there in cross-examination.  Sam said he was told by Mr Grundy that he would be given the Bluebird when he turned 16 and was old enough to drive.  He says there was talk of swapping cattle for Mr Edwards ownership of the car, and talk of him working on Avenal in the holidays, in exchange for Mr Grundys doing up the Bluebird over time. Sam said this conversation occurred in the school holidays in the middle of 2005.

[32] Mr Lorne didn’t know anything about the car being given to Sam.  Mrs Lorne had heard the Bluebird called “Sam’s car” but didnt know why.  I think the significance of this evidence is that it is unlikely that there had been any serious gift of the car to Sam without his parents knowledge.  The plaintiff thought it was, and was called, Sams car.  She thought it had been for years.  I reject her evidence as unreliable and necessarily based on hearsay.

[33] In the second half of 2005, Mrs Isles advanced money to the Lornes to assist in them buying Debbie-Jo her first car. I find that there was some talk in the September/October 2005 school holidays, on Avenal, of Sam receiving a similar gift.  There was obviously some light-hearted reference after that to the Bluebird as Sam’s car.  However, that may be, I find that nothing occurred which transferred ownership of or control over the Bluebird to Sam prior to the accident. 

 

The Conversation Preceding the Drive

[34] There was a conversation before Debbie-Jo and Sam went for a drive.  Every witness gave a different version of it.  I prefer the evidence of Mr Tony Lorne.  Mr Lorne said that after the main course had been cleared away, Mrs Isles and Priscilla Lorne went into the kitchen to prepare dessert.  The children moved away from the table.  Priscilla Lorne’s sister, Mr Grundy and Mr Edwards remained sitting at the dining table.  He recalls Mrs Isles coming back into the dining room just as Debbie-Jo and Sam came back into the room.  He said:

I just heard them say, Were going, and I just sort of turned around like that to see them in the doorway and asked who was going to be driving - or they - I said, Where you going first, and they said theyre going driving, and then when I asked who was driving, Debbie had the keys and said that she was, and I said to Debbie just to make sure that she didnt do anything silly, you know, and drove sensibly, and my wifes mother also said the same thing to them, you know, Make sure you do.  Dont do anything stupid, and they agreed that they wouldnt, and off they went.

[35] As a result of his view of her driving ability, Mr Lorne said he was not overly concerned at the prospect of the plaintiff going driving.  He said this as to his thinking:

All right.  So you didnt have any concerns about her competence as a driver if she did what you told her, not to do anything silly?--  Well, if you sat on the speed that should have been driven on that property, well, none of this should have happened, put it that way.

 

Right, but you in the course of your country driving would have been fully aware that you can drive at substantial speeds on gravel roads safely?--  Depending on the experience of the driver.

 

Yes.  In any event, you didnt anticipate that Debbie would do anything so stupid as to drive very fast on this road?--  Well, I thought, I thought she would have had a lot more common sense.

[36] I find that in announcing to the adults in the dining room, “We’re going”, Debbie-Jo, was seeking permission to drive in an informal manner consistent with her age.  This is what she says she was doing.  I find that Mr Lorne would have objected to the course proposed by the plaintiff if he had any concerns about her driving.  He said he would have stopped them going out if Sam had been going to drive, as he did not think Sam was a sufficiently experienced driver.  He said that while the plaintiff listened to her mother and grandmother more, she did accept his authority as her stepfather and would take notice of what he said to her if the situation was serious.  He said that the plaintiff called him Dad, and that they were fairly close.  I find that had Mr Lorne, or Mrs Isles told DebbieJo not to drive the car, Debbie-Jo would have obeyed and not gone driving. This was the plaintiffs evidence and it is consistent with what Mr Lorne said about his relationship with Debbie-Jo and with the evidence that Mrs Isles was in regular contact with her daughters family, including Debbie-Jo, and was an assertive woman.  It is also consistent with the fact that the plaintiff asked permission to drive, however informally.

[37] Mrs Lorne says, and I accept, that she was not aware of the conversation preceding her children going out for a drive; she was in the kitchen, not the dining room.  Her evidence is that when she discovered the children had gone for a drive she was annoyed, not because she thought it was unsafe, but because it interrupted the course of the lunch.  Her hindsight view is that she would have told the children to wait until the meal was finished so that an adult could accompany them on the drive.  With the best will on her part, I do not believe it is possible for Mrs Lorne to say now what she would have said had her permission been asked.  There was no evidence that at the time she found that the children had gone out, she objected on the basis of safety or attempted to prevent or curtail the drive. 

[38] Both Debbie-Jo and Sam said that Debbie-Jo asked to go for a drive.  The plaintiff said she had a poor memory of the conversation, and as discussed above, I thought such evidence as she did give of the conversation was unnatural and tutored.  In a signed statement given to her solicitors in 2008 she stated she had no recollection of the conversation.  She could not explain how she came to have a better memory when giving evidence at trial.  I reject her evidence where it conflicts with that of Tony Lorne.

[39] The Avenal witnesses all said that Sam asked if he could take Debbie-Jo for a drive in his car.  My views on their credit mean that I reject this evidence in favour of that of Tony Lorne.  Tom Edwards was the least convincing of the three in relation to this topic.  He said:

What was the conversation?--  Well, all I heard, she asked her mum and dad would it be all right - Samuel asked them be all right if he took young Debbie for a drive and they said yes.

 

Okay?--  And thats when Lindsay seen the car going up the lane through the window.

 

All right?--  And he said, That cant be Debbie driving that - Samuel driving that car, must be Debbie.

[40] He had so rehearsed the story about Mr Grundy seeing the car being driven fast through the dining room window that by its second telling in evidence he said that he had seen it himself, including saying he saw the car in that part of the lane where Mr Grundy said it was out of sight from the dining room window. 

[41] An inference to be drawn from Debbie-Jos evidence about asking permission to drive from a non-family member who lived at Avenal, was that she would not have driven had such a person, say Mr Grundy, forbidden her to do so.  However, I reject her evidence as to that conversation.  There was no other evidence which bore directly upon whether or not Debbie-Jo would have obeyed Mr Grundy had he told her not to drive.  I find that she would have.  He is a dominant man; he owned the land on which Debbie-Jo proposed to drive, and his personality dominated that of Mr Edwards, who owned the Bluebird.  Had Mr Grundy forbidden the drive, I find that the accident would probably not have happened.

 

Occupiers Liability

[42] In his address, counsel for the plaintiff put this case as one of occupiers 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 defendants, rather than Mr Edwards, 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 occupiers 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 occupiers 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 plaintiffs 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 plaintiffs 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 learners 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 crossexamination he claimed more knowledge, specifically that the plaintiff had been driving on dirt roads at the property owned by her step-fathers 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 defendants knowledge about the plaintiffs driving experience and ability was more limited than that of Mr Lorne.  Of all those present at Avenal, Mr Lorne knew the plaintiffs 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 parents 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 plaintiffs 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 MrGrundy 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 childrens safety he was performing his parental role.  Mrs Isles role as the childrens 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 childrens 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.

Footnotes

[1] cf., Rabbit v Roberts, unreported decision, SASC (Full Court) 11 December 1996.

[2] (1996-7) 188 CLR 313, 336.

[3] (1932) 46 CLR 550, 554

[4] Commissioner for Railways (NSW) v Cardy (1959-1960) 104 CLR 274, 317.

[5] (1987) 162 CLR 479, 488.

[6] (1980) 146 CLR 40, 47-8.

[7] Shirt, above, p48.

[8] Vairy v Wyong Shire Council (2005) 223 CLR 422, 425.

[9] (2007) 234 CLR 330, 348.

[10] Dederer, above, 354.

[11] See Tame v New South Wales (2002) 211 CLR 317, 332; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, 329.

[12] (1945) 70 CLR 256.

[13] Smith v Leurs (above) p 262.

[14] (1964) 111 CLR 384, 387.

[15] [2006] QCA 209 [17].

[16] (1970) 123 CLR 185, 201-202.

[17] [1955] 1 QB 450.

[18] [2000] NSWCA 190.

[19] [1985] HCA 34.

[20] [2005] NSWCA 418 [87].

[21] [2005] NSWCA 151.

[22] [2006] NSWCA 308 [106]-[111].

Close

Editorial Notes

  • Published Case Name:

    Simpson v Grundy & Anor

  • Shortened Case Name:

    Simpson v Grundy

  • Reported Citation:

    [2013] 2 Qd R 384

  • MNC:

    [2011] QSC 299

  • Court:

    QSC

  • Judge(s):

    Dalton J

  • Date:

    06 Oct 2011

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment [2013] 2 Qd R 384 06 Oct 2011 -

Appeal Status

No Status