Jacobs v Donald [2000] NSWCA 366

New South Wales Court of Appeal

CITATION : Jacobs v Donald [2000] NSWCA 366 FILE NUMBER(S) : CA 40553/00 HEARING DATE(S) : 8 December 2000 JUDGMENT DATE : 8 December 2000

PARTIES : Rodney Jacobs v Malcolm Donald JUDGMENT OF : Priestley JA at 1; Meagher JA at 14; Giles JA at 15

LOWER COURT JURISDICTION : District Court LOWER COURT DC 168/99 FILE NUMBER(S) : LOWER COURT His Honour Judge O'Reilly JUDICIAL OFFICER :

COUNSEL : Appellant - M. McAuley Respondent - C. Leahy SOLICITORS : Appellant - Lamrocks, Penrith Respondent - Goldrick Farrell Mullan

CASES CITED: March v Stramare (1991) 171 CLR 506 DECISION : Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40553/00 DC 168/99

PRIESTLEY JA MEAGHER JA GILES JA

Friday, 8 December 2000

JACOBS v DONALD

1 PRIESTLEY JA: Notwithstanding a patient and earnest attempt on the part of the appellant's counsel to persuade the Court that it ought to change the judge's decision, the Court is of the opinion that there is no sufficient reason shown to interfere with the judgment below. 2 Stated very briefly, what happened that is undisputed was that on 3 April 1998 the appellant, who was the unsuccessful plaintiff below, was moving away from the roadway down a driveway in a block of units in Cabramatta when he came into collision with a car which was being driven by the respondent, the defendant below, who was a police detective in plain clothes. The car was not marked as a police vehicle. The plaintiff claimed that the injuries he suffered from the collision were the fault of the defendant and the defendant had been negligent in the way in which he drove the vehicle at the time of the accident. 3 The case came before O'Reilly DCJ where the plaintiff simply said so far as the accident was concerned that he was jogging along this driveway and then the first thing he knew was he was hit by the police car. His account of how he came to be jogging along the driveway was in essence that he'd been in company with an acquaintance called Mr Tranh who had got ahead of him going along that driveway and he was jogging along trying to catch up. 4 The account of the incident given by the defendant was quite different. He said he had been in company with another police officer in the unmarked police car when they had seen a car with a driver and a passenger about which they got some radio information. This was to the effect that that car was stolen. They proceeded to follow this car when it stopped and the plaintiff got out and started running away. The driver of the pursued car drove on for another 100 metres or so and then he stopped and also ran away. The two police officers ran after the driver, the defendant only for about 20 metres or so before he came to the conclusion he wasn't going to catch the driver. He mentioned in his evidence later on that at the time he weighed 115 kilograms and was not very fast on his feet. So he went back to the police car and went off looking for the passenger who had run away. About a block away, in a parallel street, McBurney Street, he saw the passenger running across the road out of a block of units into the driveway of another unit complex on the other side of the road. The defendant turned into the driveway at about 30 kilometres per hour and drove along the driveway behind the plaintiff who was running, as far as the defendant could see, just as fast as he could go. At the end of the driveway there was an underpass going underneath the units so that the driveway was in fact what was described by the defendant as a horse-shoe. Actually it was like a U with a right-angled bottom part joining the two strokes of the U, so that in order to turn into this underpass his vehicle had to make a right angle turn. 5 His account was that he had passed the plaintiff about three-quarters of the way down this driveway, slowed down in order to make the left hand right-angled turn through the underpass and then felt or heard the impact of the plaintiff running into the vehicle. He got out and found the plaintiff near the entrance to the underpass on the left hand side of the vehicle with a broken leg. And from there the plaintiff was taken to hospital and his leg was quite severely injured. 6 The two accounts were obviously completely different from one another. The trial judge said that he could not accept what the plaintiff had said. He did not think he was telling the truth, and he did accept that the defendant was a witness of truth. 7 The trial judge stated his findings of fact quite shortly. After he said he accepted the defendant's account, he first found that the actual point of collision of the plaintiff with the vehicle was towards the rear of the nearside front wheel arch. There was independent evidence, gathered by an investigating policeman within an hour or so of the accident, which supported this finding. The trial judge said he was also of the view that the defendant was travelling at a very low speed whereas the plaintiff was running as fast as he could. That also seems to be a fully justified finding, once he accepted the defendant's evidence. 8 A further finding was that the plaintiff was well-aware of the presence of the police car immediately before the accident. We have heard some argument this afternoon about the probabilities of that matter but I will not go through the detail, I will simply say that on the facts as given by the police officer it seems as plain as daylight that the plaintiff knew that he was being chased at the time he was running as fast as he could down this driveway, and must have known that it was a police vehicle that was chasing him. 9 Then the judge said that plainly the defendant was not entitled simply to drive up behind the plaintiff and strike him with the vehicle. I agree with that. But the trial judge continued that he saw no negligence in the defendant, once he'd passed the plaintiff on the plaintiff's right hand side, continuing to drive the vehicle so that the defendant could get in a better position to make an arrest. I would mention here that the judge seems to have assumed that the purpose of catching the plaintiff would have been to arrest him. That may not necessarily have been right. He may simply have wanted to ask him some questions. I do not think it makes any difference. 10 I agree with the trial judge that the circumstances of the case as narrated by the defendant do not disclose any negligence. 11 The principal point made on behalf of the plaintiff in this Court against that conclusion is that the defendant was not using his siren as he was driving in McBurney Street and not using his siren as he drove down the driveway. That point, however, does not seem to me to get anywhere in the case once the fact is recognised that before the accident the defendant's car had passed the plaintiff. If you take that fact together with the earlier fact that I have mentioned which this Court is bound to operate on, the judge's finding that the plaintiff was well aware of the presence of the police car chasing him, then the non-sounding of the siren does not to my mind have any relation to the cause of the accident. 12 The trial judge cited a passage from March v Stramare in which Dean J mentioned that it is still the case that where, as a matter of ordinary common sense a person is the real and sole cause of an accident in which he is involved, the other party to the accident is not to be the subject of any blame. This case seems to be one of that sort, as the trial judge thought. The plaintiff was running down the driveway, he could have stopped at any time, or at least he could have slowed down at any time. The finding was that he was passed about three-quarters of the way down the driveway so that between there and the underpass, had he wanted to stop, he could have stopped. As it was, he apparently ran full tilt into the car which was turning left in front of him, driven by somebody who had a lawful reason for wanting to get in front of him and wanting to bring him to a stop. 13 In the circumstances it seems to me to follow from the trial judge's factual findings that the cause of the accident was the plaintiff's own conduct and there was no breach of duty on the part of the defendant. It therefore seems to me that the appeal has to be dismissed with costs. 14 MEAGHER JA: I agree. 15 GILES JA: So do I. **********