Reckless Driving and Passenger TAC Claims | Norman v TAC
5 min read
11 June 2024
In Norman v Transport Accident Commission [2024] VSCA 123, the Victorian Court of Appeal considered whether a passenger injured in a serious motor vehicle accident had voluntarily accepted the particular risk that caused his injuries.
Mr Norman was a passenger in a vehicle performing fishtails at 80 kilometres per hour or more on a dirt road. A jury found that he knew and fully appreciated the risk of injury from that conduct but freely chose to accept it.
The defence of voluntary assumption of risk was therefore established, completely defeating his common law damages claim.
The Court of Appeal found that the jury’s verdict was reasonably open on the evidence and refused leave to appeal.
How did the accident happen?
At approximately 8.00 pm on 12 September 2018, Hayden Norman was travelling as a back-seat passenger in a 1993 Holden Rodeo utility on Reef Hills Road near Benalla.
Mr Norman was 17 years old and was wearing a seatbelt. The vehicle was driven by 18-year-old Aaron Maggs. Two other teenagers were also travelling in the vehicle.
The vehicle was performing fishtails on the dirt road and travelling at approximately 80 kilometres per hour or more. Mr Maggs lost control, causing the vehicle to leave the road, strike an embankment and collide with a tree.
Mr Norman suffered significant injuries.
The TAC admitted that the collision was caused by Mr Maggs’s negligent driving, management and control of the vehicle.
Why was the TAC the defendant?
The vehicle was unregistered and therefore an “unindemnified vehicle” under section 96 of the Transport Accident Act 1986 (Vic).
Section 96 permitted Mr Norman to pursue the TAC for the lesser of:
the amount he could have recovered from Mr Maggs; and
the amount for which the TAC would have been liable if the vehicle had been indemnified under the Act.
Mr Norman initially sued Mr Maggs. In November 2021, the proceeding was amended to substitute the TAC as the defendant.
Although the TAC admitted the driver’s negligence, it relied on:
voluntary assumption of risk; and
contributory negligence in the alternative.
What happened the previous day?
On 11 September 2018, Mr Norman and a group of other young people took the same vehicle to the Reef Hills area.
The vehicle was used for activities including:
burnouts;
handbrake turns;
fishtails; and
launching over a dam bank.
Mr Norman was sometimes a passenger and at other times watched the activity. He described some of it as fun.
Mr Maggs did not drive the vehicle that day. He was a spectator.
The earlier driving was nevertheless relevant because members of substantially the same group returned with the vehicle the following day. Contemporaneous police statements indicated that everyone was excited to return to have more fun, damage the vehicle and eventually abandon it.
The central factual dispute was whether the dangerous activity from the first day was intended to be, and was, repeated on the second day.
What was the condition of the vehicle?
Evidence indicated that the vehicle was unregistered and in very poor condition. Its rear windscreen was completely smashed, its front windscreen was almost nonexistent, there was broken glass in the cabin and it did not have a proper back seat.
At trial, Mr Norman and some of his witnesses disputed parts of that evidence.
However, the TAC did not ultimately rely on the poor condition of the vehicle as the particular risk that caused Mr Norman’s injuries.
Instead, its condition was relevant to the credibility of the claim that the group had returned merely for a normal drive around the area. It supported the inference that the vehicle was being used again for reckless driving and entertainment.
What is voluntary assumption of risk?
The defence is commonly known by the Latin expression volenti non fit injuria.
A defendant must prove that the injured person:
knew the nature and extent of the particular risk;
fully appreciated that risk; and
freely and voluntarily agreed to incur it.
Knowledge that an activity carries some general danger is not necessarily sufficient. The plaintiff must understand and accept the particular risk that ultimately materialises.
Whether a person accepted the risk is generally a question of fact. Their acceptance may be inferred from their conduct and the surrounding circumstances.
How does voluntary assumption of risk differ from contributory negligence?
Voluntary assumption of risk and contributory negligence have different requirements and consequences.
Contributory negligence arises when an injured person fails to take reasonable care for their own safety. It results in a reduction of damages reflecting their share of responsibility.
Voluntary assumption of risk requires actual knowledge, full appreciation and free acceptance of the relevant risk. It is a complete defence and prevents the plaintiff from recovering common law damages.
Because the jury accepted the voluntary assumption of risk defence, it was unnecessary to decide the TAC’s alternative allegation of contributory negligence.
What was the particular risk?
The trial judge described the relevant risk as the risk of injury from careless or reckless driving.
More specifically, the TAC’s case at trial was that Mr Norman accepted the risk of injury from travelling in a vehicle performing fishtails at 80 kilometres per hour or more on a dirt road.
At trial, Mr Norman did not contend that he failed to understand the danger of travelling in a vehicle being driven in that manner.
Instead, his case was that the reckless activity from the previous day was not repeated and that Mr Maggs suddenly accelerated without warning shortly before losing control.
The jury rejected that account.
What did the jury decide?
The County Court trial was heard by a judge and jury over nine days.
The jury was asked:
Did the plaintiff know of the nature and extent of the risk which eventuated, and appreciate the nature and extent of the risk which eventuated, and freely and voluntarily agree to incur the risk which eventuated?
The jury answered “Yes”.
Judgment was entered in favour of the TAC, and Mr Norman was ordered to pay the TAC’s costs.
Why did the jury reject Mr Norman’s account?
Mr Norman and the other passengers gave oral evidence suggesting that the driving on the second day was normal until Mr Maggs suddenly accelerated shortly before the collision.
However, the jury also had contemporaneous police statements made by two of the passengers.
Those statements indicated that:
the group returned to have more fun, damage the vehicle and abandon it;
they were doing skids;
Mr Maggs was performing fishtails;
the vehicle was travelling at approximately 80 kilometres per hour or more; and
the dangerous driving was occurring before control was lost.
The jury was entitled to prefer those earlier statements over the witnesses’ oral evidence at trial.
The Court of Appeal considered the oral account inherently implausible and inconsistent with the more contemporaneous police statements.
Was the evidence from the previous day tendency evidence?
Mr Norman argued on appeal that the jury must have used the previous day’s activities as impermissible tendency evidence.
The Court rejected that argument.
The TAC did not ask the jury to infer that Mr Maggs drove recklessly on 12 September simply because he had driven recklessly before. Mr Maggs had not driven the vehicle on the previous day.
Instead, the evidence was used to establish that:
the group had participated in reckless driving on the first day;
substantially the same group returned the following day;
they intended to repeat the activity; and
Mr Norman knew and accepted what was planned.
The trial judge specifically directed the jury not to engage in tendency reasoning. There was no basis to conclude that the jury disregarded that direction.
Did it matter that Mr Maggs had not driven the previous day?
No.
The fact that Mr Maggs was only a spectator on the first day did not make the earlier activities irrelevant.
The jury could conclude that all the occupants were participating in a shared activity involving reckless driving, irrespective of which member of the group happened to be driving.
The question was not whether Mr Norman knew that Mr Maggs personally had a history of reckless driving. It was whether Mr Norman knew and accepted that the vehicle would be used in the same reckless manner when he chose to participate on the second day.
What did the Court of Appeal decide?
Mr Norman argued that the evidence could not support the voluntary assumption of risk defence and that the jury’s verdict should be overturned.
The Court explained that an appellate court cannot set aside a jury verdict merely because it might have reached a different conclusion.
The question was whether the jury’s finding was reasonably open on the whole of the evidence. In answering that question, the evidence had to be viewed in the manner most favourable to the TAC as the successful party.
The Court found it was open to the jury to conclude that:
the group intended to repeat the reckless driving from the previous day;
Mr Maggs was performing fishtails at 80 kilometres per hour or more on a dirt road;
Mr Norman knew and fully appreciated the resulting risk of injury; and
he freely and voluntarily accepted that risk.
The proposed appeal had no real prospect of success. Leave to appeal was therefore refused.
Does travelling with a reckless driver always prevent compensation?
No.
The decision does not establish that every passenger who travels with a careless or reckless driver voluntarily accepts the risk of injury.
The defence requires proof that the passenger actually knew, fully appreciated and freely accepted the particular risk that materialised.
Relevant matters may include:
what the passenger knew was planned;
the manner in which the vehicle was being driven;
the passenger’s participation in or encouragement of the activity;
whether the dangerous conduct was deliberate;
how long the conduct continued;
whether the passenger had an opportunity to decline or leave; and
the passenger’s age and understanding.
Each case depends on its own evidence.
Can the passenger still receive TAC benefits?
The defence concerned Mr Norman’s common law damages claim. It does not necessarily prevent access to no-fault TAC benefits.
An injured passenger may still be entitled to benefits such as treatment expenses, rehabilitation support, income benefits or an impairment benefit, depending on their circumstances.
These no-fault entitlements are distinct from common law damages based on negligence.
Speak with a Melbourne TAC lawyer
If you were injured while travelling as a passenger, your entitlement to common law damages may depend on what you knew about the activity and whether you freely accepted the particular risk.
Bastion Legal assists injured passengers with TAC claims and common law damages proceedings throughout Melbourne and Victoria. Contact us to discuss the accident and your potential entitlements.
How we can assist…
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