Brett COLLINS by his tutor John William Collins v THE NOMINAL DEFENDANT & ANOR [1999] NSWSC 1183

New South Wales Supreme Court CITATION : Brett COLLINS by his tutor John William Collins v THE NOMINAL DEFENDANT & ANOR [1999] NSWSC 1183 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 21367/95 HEARING DATE(S) : 23/11/99 to 24/11/99 JUDGMENT DATE : 23 November 1999

Brett Collins (Plt) PARTIES : The Nominal Defendant (Def) Michael Lahodiuk (1st XD) JUDGMENT OF : Newman J

P E Blacket SC/R A Regattieri (Plt) COUNSEL : K W Andrews (Def) M J Heath (1st XD) R J Rimes (Plt) SOLICITORS : Gillis Delaney Brown (Def) Somerville & Co (1st XD) CATCHWORDS : ACTS CITED : Motor Accidents Act 1988 DECISION : Judgment for plaintiff - liability only

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN J

WEDNESDAY, 24 NOVEMBER 1999

21367/95 - Brett John COLLINS by his tutor John William Collins v THE NOMINAL DEFENDANT

JUDGMENT

1 HIS HONOUR: This is a claim brought by a minor Brett John Collins against the Nominal Defendant. The Nominal Defendant in turn seeks, if found liable pursuant to s 31 of the Motor Accidents Act 1988 as amended, to recover from the alleged owner of a motorised trike which was involved in an accident, Mr Michael Lahodiuk. 2 The proceedings before me related only to matters of liability. Accordingly, having regard to the wording of s 31, as no pecuniary order in terms of damages is now to be made, it is not in fact open for the court to make any order relating directly to recovery pursuant to s 31. However, the parties have agreed that it is appropriate that the court make certain findings of fact in relation to the issue which arose between the Nominal Defendant and the owner so that in future that finding of fact can dictate the course of action to be taken by the parties. 3 As I have said, the plaintiff is a minor. He was born on 7 March 1986. He sues by his tutor, John William Collins. 4 The uncontested facts in the matter are that on 26th December 1994 a group of friends, many of whom were related, went on a camping expedition to a site past East Gresford in this State in an area commonly known as The Barrington Tops. The persons who attended this camping expedition were a Mr Graham Coates, his companion Jo-Anne Collins, her son, Brett Collins, the plaintiff in the matter, Alan and Jenny Coates, Alan Coates being Mr Graham Coates' brother, their son Benjamin and two other children Joshua and Nicola of that union. Mr Graham Coates' daughters Emma and Abigail were also present. 5 Mr Michael Lahodiuk was present with his then girlfriend, now wife, whose name was Jenny Brand at that stage - (she married Mr Lahodiuk two weeks ago) and several children of Jenny Brand, namely a girl Jade and two boys Tom and Richard, Richard being nicknamed Fess. He carried the surname then of Stewart. As I have said, the party gathered at this site in the Barrington Tops on 26th December 1994. 6 The group had with them a number of vehicles. Putting aside motor cars, there were two motor bikes, ie ordinary motor bikes consisting of two wheels, and two motorised trikes. One of these trikes was a 200cc capacity trike manufactured by Honda. The undisputed evidence in the matter is that the 200cc Honda trike was in fact owned by Mr Michael Lahodiuk. Mr Lahodiuk gave evidence in the matter acknowledging that he was the owner and that he purchased the conveyance some years before hand. It was of a variety generally described as being an all-terrain vehicle. It is a vehicle to be used in circumstances where it is necessary to gain access to areas which are not accessible by road. In other words, the type of vehicle which was used for off road recreational pursuits and by people such as graziers when rounding up cattle and sheep on properties. 7 Benjamin Coates, (born on 20 December 1981) is, as I have said, the son of Alan Coates. Unfortunately the evidence discloses that his mother Jenny Coates is recently deceased. Thus, by 30 December 1994, Benjamin Coates had attained the age, and indeed very recently attained the age of thirteen. 8 The evidence discloses - and it was not disputed in any way - that Mr Alan Coates at the time, and still does, and has for a long time, operated a motor cycle store in the Newcastle area. Not surprisingly the evidence discloses that Benjamin Coates from a relatively early age became proficient in riding motor cycles. 9 Benjamin Coates in evidence given this morning said that he commenced riding motor cycles of the type usually referred to as "trail bikes" at the age of ten. As of 30 December 1994 it seems his experience in riding those bikes was principally confined to bikes of 100cc capacity or 175cc capacity. As I again understand his evidence, he had ridden a very large trail bike of 500cc capacity but not in open ground, but around enclosed premises owned by his parents. 10 The evidence is that of 30 December 1994, whilst but thirteen years of age, Benjamin Coates was an experienced and apparent competent rider of trail motor bikes. 11 As I have said, one of the vehicles which was taken on this expedition was a Honda motorised trike owned by Mr Michael Lahodiuk. 12 On 29 December 1994 Mr Lahodiuk deposes to - and his evidence again, as is much of the evidence in the case, uncontested - gave permission to Benjamin Coates to ride the trike on that day. He made it conditional that Benjamin Coates was only to ride the trike if his parents gave permission for him so to do. The permission granted was to ride around the camp site. There is no suggestion in Mr Lahodiuk's evidence, nor was it suggested to him, that he had given permission to Benjamin Coates to ride the motorised trike on a road, whether public or private. 13 On the morning of 30 December 1994 people involved in the camping expedition were preparing to start the day. As I would understand the evidence, a number of people were breakfasting, abluting, and doing a variety of things during the early part of the morning. "Fess" Stewart, otherwise known as Richard, approached his mother Jenny Brand and asked her if he could use Mr Lahodiuk's trike. Ms Brand had given evidence that as far a she was concerned she herself had permission at all times to ride the trike, a proposition in no way denied by Mr Lahodiuk. In any event, it was her evidence that she allowed her son to ride the trike. He was then aged, as I understand it, about nine years of age. She told him that he was to take it a short distance up a nearby public road and at a designated spot was to turn and return to the camp site. As I understand the evidence, the public road in question is known as Boonabilla Road. This he did. 14 It was Richard (Fess) Stewart's evidence that having completed what was in fact a relatively short journey he was approached by Benjamin Coates and asked if he could ride the trike. He (aged nine years) not surprisingly acceded to the request made by a thirteen year old boy. I make no criticism of either of them; it is a perfectly normal situation. In any event, it was Richard Stewart's evidence that he saw Benjamin Coates mount the rider's seat and the plaintiff got on the bike behind him as a pillion passenger. He saw them head off down Boonabilla Road. 15 Sometime elapsed after their departure. Richard Stewart became concerned about the time they had been absent and made that concern apparent to persons in the camp. Mr Graham Coates then mounted the second trike and drove down the road some one hundred and so metres where he came across an unfortunate scene, namely, the trike being off the road suspended by the branches in a tree and the two boys on the ground, the plaintiff being unconscious and Benjamin Coates in a dazed, semi conscious and confused condition. 16 Arrangements were then put in train to obtain help. It is not necessary to detail those arrangements for the purposes of the issues which emerge in this case, save to mention that after the boys were transported in a motor vehicle away from the scene, they came in contact with two ambulances and also Sergeant Edwards of the Dungog Police, the matter having been duly reported. There is no need to go into the circumstances of the reporting. 17 Sergeant Edwards gave evidence which indicated that in the conversation he had with Benjamin Coates, Benjamin Coates conceded that he had been the rider of the motorised trike. There is some confusion as to other statements which might be ascribed to Benjamin Coates at the time. I rather gather that Sergeant Edwards - and I make no criticism of him because of the circumstances - gained information from a number of sources which he summarised, and indeed that constituted the largest part of his evidence as far as statements relating to the circumstances of the accident are concerned. 18 Benjamin Coates himself gave evidence this morning. He has no recollection of the accident. Indeed, he has no recollection of even riding the trike before hand. In the light of the circumstances of the accident and the injuries which he no doubt suffered, I do not regard his absence of memory to be in any way surprising. 19 In evidence are photographs of the subject area, including a photograph of the area of Boonabilla Road where the motorised trike left the road. Mr Graham Coates' evidence was that the photographs which were taken about a year after the events depicted the road in very much the same condition as it was at the time of the accident. It is obvious it was an unmade road in the Barrington Tops and one having a rough surface. 20 There was evidence from Mr Graham Coates, that at the time he arrived at the accident scene Benjamin Coates said he was not going too fast he must have hit a bump. Let me say, looking at the photographs, I have no difficulty at all in accepting a person riding a motorised tricycle along a road like that could well hit a bump and lose control. Benjamin Coates being an experienced motor bike rider at the time whose experience encompassed trail bike riding in rough conditions - was, in my view, a rider who should have been aware of the risk of losing control if one hit a bump at either the wrong angle or, in the circumstances, the wrong speed. I will turn to that matter later in these reasons. 21 I turn then to the factual matters relating to the proposed recovery should - and indeed as I so find - the plaintiff be entitled to judgment against the Nominal Defendant, ie recovery sought to be made pursuant to s 31. 22 Mr Graham Coates in evidence suggested that on the morning of 30 December 1994 he believed he overheard Benjamin Coates making a request of Jenny Brand that he could ride the tricycle and that she acceded to that request. She does not agree with that evidence. In fairness to Mr Graham Coates he made it quite plain at the time which existed immediately before the departure of Benjamin Coates and Brett Collins he had only just arisen and was not functioning at his optimum level. In the circumstances of the confusion which undoubtedly followed once the accident itself was revealed, I am not surprised that Mr Graham Coates' memory as to exact matters is not perfect. 23 In the circumstances, looking at the evidence of Richard (Fess) Stewart as to how the request was made to him by Benjamin Coates, the evidence of the now Jenny Lahodiuk, the evidence of Mr Michael Lahodiuk that he was not in any way approached on the day by anybody requesting the use of his motorised tricycle, I am driven to the conclusion that the most probable explanation of any request was one made by Benjamin Coates to Richard Stewart, a request made by a thirteen year old to a nine year old. In the circumstances I am of the view that in no way was Richard Stewart empowered by Mr Michael Lahodiuk to give permission for the use of the tricycle. 24 An issue emerges that in the light of Mr Lahodiuk granting permission the day before to Benjamin Coates to ride the tricycle, was that permission still extant on the day of the accident, 30 December 1994. 25 Section 31 of the Motor Accidents Act 1988 provides a defence if the owner establishes to the satisfaction of the court that at the time of the occurrence some other person was driving the motor vehicle without the owner's authority. The last clause in s 31(2)(a) is easily made out: Some other person was driving the motor vehicle, namely, Benjamin Coates. The permission which was granted the day before was of a restricted type, as I have said, it was for use in the immediate area, conditional upon permission being granted by Benjamin Coates' parents on the day in question. At the time of the accident I find that Benjamin Coates was in fact riding the motorised tricycle without any authority for him to do so being give by the owner Mr Michael Lahodiuk. The permission given by Mr Lahodiuk was confined to the previous day. In other words, if I am called upon to determine the matter I would uphold the defence. But, as I have already pointed out, because no pecuniary finding is to be made there is no recovery which could be made by the Nominal Defendant at this stage. That is a finding of fact which I make. 26 As far as negligence is concerned, it was submitted to me that in the absence of any solid evidence as to speed and I have adverted already to the uncertainty surrounding a suggestion that Benjamin Coates said that the tricycle was being ridden at 35 kilometres per hour, there is no evidence upon which I could confidently arrive at a conclusion that Benjamin Coates was driving the tricycle at an inappropriate speed which gave rise to the circumstances which led to the accident. 27 The fact of the matter is that the tricycle was off the road. It was a rough road. Benjamin Coates was at the time an experienced rider, not necessarily of motorised tricycles but of motor bikes. There is no evidence of any other traffic on the road at the time, either passing by in one direction or the other by the camp. Benjamin Coates was regarded as saying, by Mr Graham Coates, that he was not speeding but he must have hit a bump. I believe it is a proper inference to draw that the motorised tricycle was thrown from the road following the striking of a rough area of the road. There is no suggestion that visibility was other than perfect. 28 Accordingly, I am of the view that the evidence establishes that Benjamin Coates was in breach of his duty of care to keep a proper lookout and, that being so, the plaintiff would succeed in negligence were he the defendant. 29 He is not the defendant because the Nominal Defendant is the defendant. There is no doubt this accident happened on a public road in New South Wales, a point very properly conceded by Mr Andrews because on the evidence of Sergeant Edwards it is a road which carries a one hundred kilometres per hour speed limit. In my view there is sufficient evidence to establish that it is a public road in the State of New South Wales. 30 The evidence is the motor tricycle was unregistered. We have an unregistered tricycle being ridden in a negligent fashion on a public road in New South Wales. Thus the plaintiff is entitled to succeed against the defendant. Accordingly, there will be a judgment for the plaintiff. There will be a cost order in favour of the plaintiff against the defendant and a cost order in favour of the cross-defendant, Michael Lahodiuk including reserved costs.