BODIMEADE v THOMSON [1992] NSWCA 24

BODIMEADE v THOMSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, MAHONEY and PRIESTLEY JJA 11 February 1992, 11 February 1992

[1992] NSWCA 24

NEGLIGENCE — DUTY OF CARE NEGLIGENCE — duty of care owed by taxi driver to passengers where reasonably foreseeable risk of injury to one of them from the violence of person nearby — failure to heed passengers' urgings to drive away constituted breach of duty.

ORDER Appeal dismissed with costs.

Samuels AP The somewhat curious events which constitute the facts of this case, which comes on appeal from Judge Davidson, occurred as far ago as 5 February 1982. The action in which the judgment under appeal was given was heard in May 1989. Rather more than seven years, therefore, have elapsed between the trial and the events and, more to the point perhaps, between the trial and a statement made to the police by the appellant and evidence given by the appellant in proceedings apparently taken against one of those involved in the events, though not in this action.

Putting it as shortly as I can, the respondent's version, supported by his own evidence and that of two witnesses, which the learned judge accepted, was this: The respondent and two friends one called Louden and the other O'Connor - had been drinking at a hotel in Yamba. One of them ordered a taxi at about closing time, after 11 o'clock at night, and another collected a carton of beer. Before the taxi arrived, Mr O'Connor sought a lift from a gentleman called Cook, to whom he incidentally pointed out that the lights on his vehicle were not switched on. Cook had a female with him and she and he left the vehicle and a confrontation developed between Mr Cook and Mr O'Connor in which, amongst other things, Mr Cook refused Mr O'Connor a lift.

At about this time, the taxi arrived. The driver declined to carry the cans of beer on the knees of the passenger in the front seat, and required the beer to be removed to the boot. This was done and the three passengers then entered or re-entered the vehicle, the respondent sitting in the front and Mr Louden in the back. Before he got into the vehicle, the female accompanying Mr Cook attacked Mr Louden for reasons which are not clear, took him by the hair and endeavoured to prevent his entry to the vehicle.