SULTAN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Hope JA, SAMUELS JA and MCHUGH JA 16 August 1988 [1988] NSWCA 150 NEGLIGENCE — appeal from District Court — no question of principle. Samuels JA. On 17 January 1985, on the Princes Highway near the Unanderra Swimming Pool, there was a fracas involving the plaintiff (the present appellant), her husband, her brother-in-law and a National and Roads and Motorists" Association patrolman, whose name was Bennett. There was an altercation between Mr Bennett and Mr Sultan, the plaintiff's husband, with which I will have to deal in a little more detail in a moment, and Mr Bennett returned to the van from which he had alighted in order to leave the scene. When he drove off the side of the van struck the plaintiff on the elbow, as a result of which she sustained injury. She brought an action to recover damages in the District Court, asserting that her injury was caused by Mr Bennett's negligence. The action was heard by her Honour Judge Mathews (as she then was), who concluded that the plaintiff had failed to establish Mr Bennett's want of care and directedjudgment for the defendant. It is from that order that the present appeal comes. The facts of the occurrence have been fully set out in her Honour's judgment and I think the simplest way of dealing with the matter is to recapitulate the relevant parts of the occurrence as I come to deal with the submissions which have been put to us this morning on behalf of the appellant by Mr Macfarlan and Mr Donaldson. In short, what happened was that the patrolman, Mr Bennett, having rendered assistance once to get Mr Sultan's car moving, went on to a second call, passing Mr Sultan whose car had by then stopped again. Mr Sultan signalled him to stop but Mr Bennett felt that he was obliged to move on to his next call. This omission evidently angered Mr Sultan because when Mr Bennett returned, having been directed by his base to go back to the Sultans, and got out of his car and set up his emergency lights and so forth Mr Sultan grabbed him by the shirt collar and swore at him. This reception evidently filled Mr Bennett with a degree of apprehension. Without difficulty, however, he forced Mr Sultan away from him and set off to return to his vehicle which was parked just head of the Sultans" car. Mr Sultan took hold of him again, with both arms around the upper part of the body, evidently in an effort to force him to the Sultans" car. Again, Mr Bennett without difficulty freed himself and got into his car, but he was sufficiently apprehensive, first, to signal his base for the police. What happened then is not absolutely clear. This is no criticism of the learned Judge's findings but perhaps of the way in which the evidence was given by the witnesses. It does seem, however, that Mr Bennett switched on the ignition to start his vehicle and that Mr Sultan reached 2 UNREPORTED JUDGMENTS either through the open driver's side door, or possibly through the window, to seize the ignition key with the evident intention of withdrawing it from the lock and thus preventing Mr Bennett's departure. This he did with a considerable degree of force because he tore loose the key ring and keys other than the ignition key, which remained in the lock, probably because Mr Bennett had already turned it. It is likely that the engine had started at that stage; but whether that is so or not, Mrs Sultan, with a baby in her arms, and standing by the door, commenced to plead with Mr Bennett to return to the vehicle to get them going again, pointing out that it was late and that she had five children with her. Precisely where the Sultan family were standing is not clear. It seems to me, however, that there is no reason to question her Honour's finding upon the point, which was that Mr Sultan was standing closest to the door, his brother-in-law next and Mrs Sultan the furthest away. I would have thought that the probabilities are that the door being half closed (that is Mrs Sultan's evidence), her husband and his brother were standing on the outer side of the door, while Mrs Sultan was standing further to the rear of the car and just within the arc the door would make upon closing. Mr Bennett then drove away. As he did so,the door swung closed or nearly so, striking the baby in Mrs Sultan's arms, fortunately without inflicting any damage. As a result of this, it appears Mrs Sultan somehow made contact with the side of the van, which struck her left elbow, and although the injury did not seem a serious one at the time it did in fact cause her substantial problems thereafter. Against this background of fact the issue was, as the matter was fought, whether or not the plaintiff had established, first, that Mr Bennett ought reasonably to have foreseen the risk of injury in some way to those standing by the car, including the plaintiff, and secondly, if yes, whether in driving away as he did he had acted unreasonably. Mr Macfarlan has put to us that there were four alternatives which were available, each of which would have avoided the injury, but none of which Mr Bennett adopted. The first is that he could have fixed the vehicle as was his duty, and this is supported by the assertion that it was his pride or anger which prevented his doing so. This, if I may say so, ignores the learned Judge's findings of fact. Mr Bennett himself said in evidence that he was extremely frightened and the learned Judge found that he, quite reasonably and justifiably in the circumstances, had a genuine fear of violence at the hands of the plaintiff's husband which nothing which happened had diminished. That being the case, I think that there was every reason in the circumstances why Mr Bennett could not reasonably have been expected to stay and fix the vehicle, but acted reasonably in leaving in order to preservehis own safety. Secondly, it is suggested that he could and should have told the plaintiff that he was going to move off and suggest that she should get out of the way. This, however, ignores what must have been the reality of the situation. What was happening was that the Sultan family were trying to persuade Mr Bennett to get their vehicle moving again, although they had chosen rather unattractive means of persuading him, and he, being apprehensive, as must have been obvious, was trying to get away. He was in the vehicle, to which he had returned, and the motor was running. I would have thought it plain in those circumstances that he was likely to move off at any stage. \GRULTAN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Samuels JAB Thirdly, it is suggested that he could have held the door open until he was clear of the plaintiff. I do not think that this is a realistic or reasonable alternative. I might point out that there was no cross-examination directed to Mr Bennett about whether he realised that there was any danger of hitting any member of the Sultan family, and none of these alternatives was put to him in order to seek his view about its feasibility. He asserted, although her Honour made no finding, that while he was in the car Mr Sultan had taken him by the arm with the obvious intention of trying to pull him out. It seems to me that, as Mr Macfarlan says, since there was no finding that fact cannot be relied upon; although some cognisance may be taken of it if we are asked to consider alternatives which were never explored at the trial. However, ignoring that piece of evidence, it does not seem to mereasonable to suggest that Mr Bennett should have held the door open while he drove off. Fourthly, it was suggested that he could have driven off sufficiently slowly to ensure that his passage did not force the door to close. There is no evidence as to the speed at which he drove away, save the evidence of Mr Sultan which, I must say, seems plainly exaggerated. As Mr Macfarlan says, he must have driven off at a speed sufficient to cause the door to close; but that might have been a slow enough speed, depending upon where the door was in its swinging arc, and Mrs Sultan's evidence suggests that it was no more than half open at the most. I do not think there is any evidence to suggest the speed at which Mr Bennett drove away was unreasonable. Finally, it is suggested that he could have simply walked away from the scene. That, however, in the circumstances must have appeared to him likely merely to attract pursuit by Mr Sultan and another bout of wrestling or pushing. I can see nothing in that suggestion which could establish unreasonable conduct on Mr Bennett's part. We were referred to Wyong Shire Council v Shirt 146 CLR 40, in particular to the observations of Mason J (as he then was) at pp 47-48. There his Honour spoke of the weighing up of, amongst other factors, 'any other conflicting responsibility which the defendant may have'. I would myself entirely agree with the learned trial Judge's view that one of those responsibilities must include a reasonable licence to preserve one's own physical integrity. There was every reasonhere for Mr Bennett to fear that violence might be offered to him and, in all the circumstances, I am unable to see that her Honour was in any way in error in concluding that the plaintiff had not established negligence on his part. There remains one further point, which is this. Counsel for the plaintiff at the trial raised with her Honour the fact that he had just appreciated (this is after the plaintiff's case had commenced) that Mr Sultan's brother was in the car and might be a very significant witness. No steps apparently had been taken to get Mr Sultan's brother to the court and counsel then applied for an adjournment until the following day, a suggestion which her Honour received with a singular lack of enthusiasm. The application was renewed a little later and her Honour said that she was not going to allow the matter to go over for the sake of a witness 'who you didn't know was there' and 'Is there anything more you want to say about it?'. Counsel said No and her Honour then rejected the application. I suppose that Mr Sultan's brother must have seen all that went on and it was a reasonable assumption that he would support the evidence given by the Sultan family, although indeed there was not very much in the way of discrepancy between the two sides. His evidence would probably therefore have been of significance. 4 UNREPORTED JUDGMENTS The question of whether to grant or refuse an adjournment is quintessentially one of discretion. It is a matter of procedure and a decision of that kind is therefore one with which an appellate court will only most reluctantlyinterfere. I can see nothing here which suggests to me that her Honour's exercise of discretion miscarried and I think that that point fails. Accordingly, I would dismiss the appeal with costs. Hope JA. I agree. McHugh JA. I agree. I think that the risk of any injury being caused to the plaintiff was very small. No doubt the risk of the plaintiff or her baby being struck by the door was higher. But the risk of injury from this was remote. Nevertheless, it was not so remote as to be fanciful. It was a risk that a reasonable person could not disregard. He would be bound to consider what alternatives were available to him. Moreover, as Mr Macfarlan pointed out, there were alternatives available to Mr Bennett. However, the ultimate issue is whether he acted unreasonably in failing to avoid a risk of injury which could be foreseen and avoided. In determining that issue it is of great significance that her Honour found that Mr Bennett reasonably and justifiably feared for his safety. That is a matter which must be taken into account in determining whether he acted unreasonably in failing to take advantage of the alternatives which Mr Macfarlan pointed out were available to him. In all the circumstances of the case, and for the reasons given by Samuels JA, I think that Mr Bennett was reasonably entitled to take the view that the threat to his own safety, if he had pursued the alternatives, outweighed thepossibility of risk of injury to the plaintiff. In all the circumstances, therefore, I am of opinion that Mr Bennett was not negligent. I agree with what Samuels JA has said about the ground of appeal concerning the adjournment. I agree with what is proposed. Hope JA. The order of the court is the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: R B S MACFARLAN QC/S DONALDSON Solicitors for the appellant: KEARNS and GARSIDE Counsel for the respondent: R ST JOHN QC/C P CRITTLE Solicitors for the respondent: MR F THOMPSON