Two civil wrongs don’t make a legal right

BAL Lawyers 22 June 2018
Two Civil Wrongs Don’t Make a Legal Right

Canberra taxi driver fears physical violence while driving passengers home after a night of drinking, and loses control of vehicle.

In his recent comic relief book, US late night talk show host, Jimmy Fallon, writes “the one thing you shouldn’t do is try to tell a cab driver how to get somewhere”.

Whilst much more eloquently stated, the ACT Supreme Court’s recent appointee, Associate Justice McWilliams, has given judicial authority to this slapstick observation, specifically through her findings in Cockburn v Jacobsen [2017] ACTSC 380 which, in addition to being a win for cab drivers at large, serve as a useful reminder of the standard of care that one may expect to receive in respect to personal injury liability in the ACT.

In the case, three inebriated plaintiffs were passengers within the taxi of the defendant cab driver, bound from Fyshwick to Forde in the early hours of a Sunday morning. Tragically (said with smirking sarcasm), the highs of the passengers’ night took a turn for the worse when their pleas to be taken to McDonald’s were denied. Dissatisfied with the outcome, slurs ensued from the passengers to the driver along the lines of “Well, that’s pretty f**ked. F**king taxi drivers. They should take us where we want”. Unsurprisingly, this was not well received by the driver, though with boisterous behaviour being an occupational hazard, he was able to persevere. Well, at least up to the point when one of the passengers declared a desire to urinate, coupled with an observation that within the taxi was an appropriate place to do so. Tragically, again, this request was also denied, leading to comments akin to “If we want to p*ss, we’ll p*ss… You can f**king do what we say, or you’ll learn the hard f**king way”.

At this point, you may appreciate that the driver now had some alarm bells ringing. Bear in mind also that he was travelling in the wee hours of a Sunday morning, outnumbered, in a metal coffin driving along the sparsely populated Fairbairn Avenue. In fear of travelling further down a road where support may not be forthcoming, the driver pulled over upon reaching a set of traffic lights, and offered to call a replacement cab. In rejecting that offer, it was retorted “If you don’t start driving us home by the time I count to ten, I’m going to smash your f**king head in”. In a state of panic, and in fear of physical violence, the driver’s foot hit the accelerator. Before long the cab lost control and collided with a light pole.

And what, I suppose you are asking now, followed next for the poor driver?

Three personal injury claims against him, with each passenger alleging a breach of the driver’s duty of care to exercise reasonable care and skill in the driving of his cab. Now, to the passengers’ credit, even the drivers’ barrister accepted the status quo principle that, in the normal circumstances, a passenger to a vehicle may claim in negligence against a driver having lost control. This said, whilst that argument did justify some debate in a court of law, I question whether the same logic would survive in the court of public opinion.

Regardless though, Associate Justice McWilliam not only tailored a masterful use of common sense in dismissing the passengers’ claims for compensation, but did so through sound legal reasoning. In short, Her Honour quite rightly observed that the standard of care required under our Territory legislation is that which a reasonable person standing in the driver’s shoes would have applied, if armed with all the information of the surrounding circumstances. Thus, it is not whether the driver could have (or should have) done something else to avoid the accident. It is whether what he did was reasonable, in the face of his genuine fear for his safety.

Given the driver’s plight, Her Honour accepted that his fear had triggered a panic attack, which ultimately led to losing control of the vehicle. However, as that loss of control was not triggered by a conscious decision of the driver, but rather the inappropriate behaviour of the passengers, Her Honour refused to find anything unreasonable in how the driver had acted.

In a world where bullying behaviour is becoming less and less tolerated, I applaud Her Honour’s sound alignment of community standards with judicial precedence in this respect. To have otherwise found in the passengers’ favour, in my opinion, would have rewarded socially (arguably also legally) unacceptable behaviour in a way which would be tantamount to the school yard logic of two wrongs making a right.

For advice on personal injury liability in the ACT please contact Ian Meagher, Director of Litigation and Dispute Resolution at BAL Lawyers.

This is a sponsored article, though all opinions are the author’s own. For more information on paid content, see our sponsored content policy.

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