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An intoxicated reveller who threw herself onto the bonnet of a car has defeated a third-party insurers’ arguments that such conduct barred her from compensation for injuries received when she was thrown off as the vehicle accelerated away.
Taylor Draper was among many under 25s congregating in Jack Evans Park, Coolangatta around 1am on Easter Saturday morning in April 2017.
Her group had walked there after drinking sessions at their home and at the Coolangatta and the Sands Hotels.Aggressive outbursts at the park prompted 16-yr-old Rebecca Ribbons – among a different group of youths accused by others of stealing a handbag – to call a friend to collect them ASAP.
When Brooke Catlin arrived in her mother’s Holden Astra about 10 minutes later, Rebecca and two others raced to the vehicle to get in.
Brooke began to drive slowly away but suddenly stopped as Taylor “bolted at full speed” from the park and then jumped headfirst onto the stationary Astra’s bonnet, cracking its windscreen.
She turned herself around and sat in the centre of the bonnet with her back against the windscreen and her legs out in front.
As others advanced from the park, Brooke accelerated westwards along (the NSW side of) Boundary Street.
She slowed to turn right (into Queensland) at a roundabout to ascend Hill Street which – she said – she believed was far enough away from her antagonists to stop and get the girl off before driving home.
As the car slowed for the turn, Taylor attempted to dismount by straightening her legs out over the driver’s side towards the bitumen.
She slid as it began its turn and fell backwards landing on her lower back and striking the back of her head heavily on the roadway.
There were three disinterested eye-witnesses to the event. One of those – a window repairer on the eighth-floor balcony of the Hotel Komune – captured mobile phone vision of the Astra’s approach to the intersection and turn into Hill Street.
“The other people in my vehicle were screaming in fear for me to ‘Go, go, go,” Brooke explained when Taylor’s liability-only injury compensation claim came before the NSW District Court. “I tried to drive away from what I thought was real danger, but I was conscious that this girl was hanging on, on the front of the bonnet”.
Acting Judge Jason Curtis rejected Brooke’s “agony of the moment” defence concluding that at 50 m distant from the allegedly aggressive park dwellers – and still 20 m short of the intersection – she was in a sufficiently “un-threatening situation with ample opportunity to stop the car momentarily” to allow Taylor to alight.
He was fortified in this conclusion by the transcript of her 000 call a minute after the accident being “inconsistent with escaping a situation of grave danger.”
But did Taylor’s unlawful conduct stand in the way of her compensation recovery?
Reckless damage to property and assault constituted offences – noted the judge – but sitting on the bonnet of a stationary car was not illegal and indeed was not unreasonable given the occupants were suspected of having stolen a handbag.
There was thus no reason at common law why she should be prevented from recovering compensation.
Neither could there be any Civil Liability Act protection against liability for the injured party’s criminal conduct given the unique NSW antidote to immunity that operates when the defendant’s conduct also constitutes an offence, namely a breach of the terms of her provisional drivers’ licence by “driving between 11pm and 5am with more than one passenger younger than 25 years of age”.
Brooke’s third-party insurer appealed against these findings.
In delivering the lead judgment of the court, Justice Christine Adamson upheld all of Judge Curtis’s conclusions.
She agreed that the occupants of the Astra had over-stated the danger to which they remained exposed after moving off with Taylor still sitting on the car’s bonnet.
Taylor was after all a young female who was unrestrained and without any kind of weapon, much less one that could cause any harm to the occupants of the vehicle. Rather, she was put “in grave danger of harm from the time when the vehicle started to move forward” and faced “the near certainty” of serious injury or death when thrown off.
The appeal judges also rejected the insurer’s contention that the extent of Taylor’s contributory negligence should be upgraded from 25% to 80% inter alia because the Astra “was obviously about to drive off” at the time she jumped on to the bonnet.
They concluded that the primary judge had properly rejected that interpretation of the evidence and left the contributory negligence finding undisturbed at 25%.
A further trial in relation to damages will be required unless the parties can agree on a sum that appropriately represents the value of Taylor’s injuries and losses.
Catlin v Draper [2023] NSWCA 49 Meagher JA Mitchelmore JA Adamson JA, 24 March 2023 Read case
Categories: car accident