Were you negligent, or did you act ‘in the agony of the moment’?

Overview

In Withnell v Tran [2023] WADC 100, Alex John Withnell (plaintiff) sued Quang Hoan Tran (defendant) for damages arising from personal injuries that the plaintiff said were caused by the defendant’s negligent driving.

The defendant denied that he was negligent and said that he had acted response to a perceived threat from the plaintiff.

In dismissing the plaintiff’s claim, Justice Lonsdale of the District Court of Western Australia found that the defendant was not negligent and that his actions were reasonable in the ‘agony of the moment’.

The decision serves as a reminder that liability for negligence is assessed through a lens of reasonableness. Whether conduct was reasonable will be influenced by the surrounding circumstances.

 

Facts

The parties agreed that at about 6:30am on 25 June 2017, the plaintiff approached the defendant’s delivery truck as it was driving in a car park near the Flying Scotsman Hotel in Mt Lawley, WA.

The plaintiff and the defendant had different explanations as to what happened before the plaintiff was subsequently run over by the defendant’s vehicle.

The plaintiff had been drinking heavily and had smoke methylamphetamine at a friend’s house the day before the incident. In the early hours of 25 June 2017, the plaintiff and some friends went to Mt Lawley.

The plaintiff said that he became separated from one of his friends and attempted to flag down the defendant’s delivery truck so that he could ask the defendant if he’d seen the plaintiff’s friend.

The plaintiff said that:

“when I got close to him [the defendant], I did raise my hands, signalling him down and I assumed he was going to stop. But like – like an idiot I grabbed his mirror with the wrong intent – with the- I’m not – with the wrong idea about the truck driver. I thought he was going to stop. I didn’t realise he was going to keep driving”

After grabbing onto the mirror of the defendant’s truck, the plaintiff was dragged along before being run over.

The defendant gave evidence that he saw the plaintiff walking towards his vehicle. He swerved to avoid the plaintiff and then heard a loud bang. The defendant saw what he thought was the plaintiff trying to get into the cab of his truck. The defendant’s evidence was that he was frightened by the plaintiff’s actions and he was driving to try and get away from the plaintiff, who had grabbed onto the truck’s mirror.

 

Findings

Justice Londsdale found that:

“in the moment, the defendant believed that the plaintiff was intending to rob him. I consider that the defendant had a credible reason to fear that he was about to be set upon…attacked and assaulted by a stranger. That is because (as the CCTV footage shows) the plaintiff made a deliberate move towards the side of the defendant’s vehicle, in circumstances where the street was deserted and in complete darkness…I find that the defendant, having heard the bang took fright and acted instinctively”

 

Legal principles

When driving, a person must exercise a reasonable standard of care to avoid the risk of injury to others.

To determine what is reasonable, in any given scenario, there must be an assessment of:

• the relevant risk(s);
• the degree of probability of occurrence; and
• the difficulty or inconvenience of taking action to avoid or reduce the risk.

In this case, the risk the defendant was responding to enlivened the ‘agony of the moment’ principle. That is, when looking at whether the defendant acted reasonably, consideration was given to the fact that the defendant was responding to an emergency situation (perceived robbery) that he was not responsible for creating.

 

Decision

Justice Lonsdale dismissed the plaintiff’s negligence claim against the defendant.

Even though the plaintiff was injured by the plaintiff’s driving, the defendant’s conduct was not negligent.  The defendant’s conduct was found to be reasonable in the ‘agony of the moment’ because:

“the streets were in darkness and deserted. The plaintiff was moving purposefully towards the vehicle for reasons that could not have been apparent to the defendant. The plaintiff caused a loud bang which frightened the defendant and caused him to fear that the plaintiff was going to enter his vehicle and rob him. The defendant’s action was entirely understandable and reasonable…the defendant’s actions were a prudent response to a situation entirely of the plaintiff’s own making”

 

Takeaways

This case serves as a reminder that legal liability for potentially negligent conduct requires a careful consideration of the surrounding circumstances and how the circumstances were created.

If you require advice in relation to negligence proceedings, please contact Stirling Owen of Chamberlains Law Firm (stirling.owen@chamberlains.com.au)