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. This incident must have been obvious to the appellant who was at that time in the driver's seat. Mr Louden fended the female off and Mr Cook then chased the female across the road, calling out, "I have not finished with you yet" and, catching her before she had reached the other side of the carriageway, proceeded to punch her to the ground. Mr O'Connor, at about this time, called on the driver to leave the scene, saying, 'he is a maniac" or words to that effect and, of course, referring to Mr Cook. Mr Cook, then having finished, apparently for the time being, with the female, turned and came back towards the taxi, saying again but on this occasion the formula was directed to those in the taxi - "I have not finished with you yet - or, 2 UNREPORTED JUDGMENTS perhaps, specifically to Mr O'Connor by reason of their prior altercation.O'Connor again urged the driver to leave, again saying, "he is a maniac or, "that man is a maniac" or words to that effect. The appellant did not move the vehicle. Mr Cook arrived, kicked the weathershield on the driver's door or window, and a piece of it flew off and struck the respondent in the eye, inflicting injuries as a result of which the eye was enucleated. A difficulty arises because the appellant's version, given in his statement and in the evidence to which I have referred, in 1982, and about which he was cross examined - the depositions were tendered - was very much more dramatic than the evidence given by the respondent and his witnesses. However, at the trial before Judge Davidson, the sole reason offered by the appellant for not driving away from the scene was that the respondent had his foot out of the front passenger's door, thus preventing the door from being fully closed and, until all doors were shut, the appellant declined to move the taxi. This explanation the learned judge rejected. The appellant gave evidence that he did radio to his base for police assistance and had done so as soon as he reached the hotel. The learned judge said that he inferred that he had done so because he apprehended some danger to someone by reason of what was going on between Cook and the female and "perhaps also because of what had passed between Mr O'Connor and Cook". Mr Petty for the appellant submits that there is an error here because the taxi driver, the appellant, could not have seen what had passed between Mr O'Connor and Cook at the confrontation which I have briefly described earlier. Hence, his Honour was basing, in effect, the finding of foreseeability upon material which was not available to him. I consider that there are two answers to this conclusion. It is far from obvious to me that the evidence prevents the inference that the appellant saw what had passed between Mr O'Connor and Mr Cook. It is not clear, certainly, but, after all, the judge saw the witnesses, saw the case unfold, heard the evidence and I am far from thinking that, having looked at the record, it necessarily follows that the error that Mr Petty attributes to Judge Davidson has been made out. Secondly, even if there is an error, it seems to me that there is ample material, apart from that fact, which ought to have made it reasonably plain to the appellant that there was a risk that Mr Cook might wreak some degree of violence upon any one of a class of persons which included the passengers he had accepted. The case for the respondent, of course, was that the appellant ought reasonably to have foreseen that there was a risk of Cook's conduct injuring one of his passengers, and that he failed to take reasonable care for their safety by declining to follow the one obvious course, which was to leave the scene. The judge rejected, as I have said, the contention that the doors of the taxi could not be closed, and rejected also other evidence by the appellant that there were people on the taxi or milling about the taxi, who prevented his driving away. Mr Petty suggests that the risk, if reasonably evident at all, was so trivial as to justify the appellant's ignoring it, and he relies upon the well known passage in the judgment of Mason J in Council of the Shire of Wyong v Shirt and Ors (1980) 146 CLR 40 at 47. However, with all respect, it seems to me that the facts in this case amply satisfy the formula which his Honour there set out. Put shortly, the case, although curious, is simple enough. The taxi is called; the passengers attempt to board it; a fight starts between one of the passengers - not started or provoked by him - and a female companion of someone in the vicinity; URJ BODIMEADE v THOMSON (Priestley JA) 3 the passengers manage to get into the vehicle and call on the driver to drive away nominating, in effect, their reason as being the risk of trouble from the woman's companion, who at that time was on the other side of the road beating her up. He turns away from that task and heads back to the taxi, and the passengers again ask the driver to leave. In those circumstances, I would have thought that a reasonable person in the position of the appellant would clearly have apprehended the risk of injury to those with whom he stood in relevant proximity and who might in fact sustain injury unless he drove away, removing them from the source of the danger. There being no finding which favours any ground of excuse - that is to say, which justifies the appellant's failure to take that step, or which is capable of minimising the risk to the extent that no heed need be taken of it - it seems to me that the claim is made out and the learned judge's conclusion was correct. Accordingly, I would propose that the appeal should be dismissed with costs. Mahoney JA I agree. Priestley JA I agree. Samuels AP: The order of the court is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: GR Petty Solicitors for the appellant: Stephen Mills, Newcastle Counsel for the respondent: JL Threw QC/GH Johnson/M Brien Solicitors for the respondent: Conroy and Stewart, Grafton