In a recent decision of the NSW Court of Appeal, Brooke Catlin (the appellant) appealed against the judgment of Curtis ADCJ (the primary judge) who found that the appellant was liable in negligence to Taylor Draper (the respondent) under the Civil Liability Act 2002 (NSW) (CLA) and that the respondent’s damages ought be reduced by 25% for her contributory negligence.
In April 2017, the respondent travelled to Coolangatta to visit friends. By about 1am, she was in a park near Boundary Street. At about that time, Ms Ribbons, who was also in the park, telephoned the appellant to ask for a lift home. When the appellant, a provisional driver, arrived, Ms Ribbons, her boyfriend and another male (all three of whom were under 25 years of age) got into the vehicle.
The appellant started to drive along Boundary Street at a slow speed because of the number of people in the vicinity. At that point, the respondent ran towards the car. The appellant stopped the car. The respondent threw herself at the windscreen of the car and cracked it. She then turned around and sat on the bonnet with her back against the windscreen, with her feet out in front of her.
Notwithstanding that the respondent was positioned on the bonnet, the appellant drove the car along Boundary Street. When she turned into Hill Street, the respondent was thrown off the bonnet and suffered serious injuries.
The primary judge found that the appellant was negligent and had failed to establish any of the defences raised (incongruity between the respondent’s criminal conduct and imposing a duty of care on the appellant; illegality at common law and pursuant to s 54 of the CLA and self-defence pursuant to ss 52 and 53 of the CLA). The primary judge also rejected the appellant’s submission that she had acted reasonably in the “agony of the moment”. The primary judge found a deduction for contributory negligence of 25%.
The appellant challenged several findings of fact and submitted that the primary judge ought to have found that the defences were made out. The appellant also contended that the primary judge’s reasons were inadequate in several respects.
The Court held dismissing the appeal:
(1) No challenges made by the appellant to the primary judge’s factual findings were made out: .
(2) There was no error in the primary judge’s conclusion that it was not incongruous to find that the appellant owed a duty of care as the respondent’s illegal conduct had ceased by the time the appellant drove with the respondent on her bonnet: ; .
(3) The appellant bore the onus of proving that she acted reasonably in the “agony of the moment”, which was not discharged: -.
(4) The appellant’s conduct in driving at 1.20am with three passengers under 25 years of age in breach of the conditions of her provisional licence constituted an offence, which caused the respondent’s injuries. Accordingly, s 54(2) of the CLA applied, thereby making s 54(1) inapplicable.
(5) The judicial obligation to give reasons can be fulfilled in different ways: . Having regard to the structure of the judgment of the primary judge, the primary judge’s reasons were sufficient, except in respect of contributory negligence: ; . The failure with respect to contributory negligence had no effect as no re-trial was sought and no greater reduction for contributory negligence was warranted: .
The decision provides a useful discussion of the defence of illegality under the common law and the Civil Liability Act 2002 (NSW) and the ‘agony of the moment’ defence.
The case of Catlin v Draper  NSWCA 49 can be read in full here.
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