BACKGROUND

In the recent decision of Ragg v Palmer[1] the District Court of New South Wales considered whether an 11 year old boy ought to have been found contributorily negligent by reason of his failure to wear a seatbelt.

The Plaintiff was a rear seat passenger in a hatchback that was struck by the drunken Defendant’s speeding vehicle after he failed to give way at an intersection.  As a result of the collision the Plaintiff was thrown from the vehicle and came to rest on a grass area by the side of the road.  Liability was not in issue.

Justice Elkaim SC DCJ noted that the Plaintiff was not cross examined at trial about his appreciation of the need to wear a seatbelt and the consequences of not doing so as well as the Defendant’s submission that the test was an objective one such that it did not matter what the Plaintiff thought.  His Honour in rejecting the Defendant’s submission held:

I agree that the test is objective (T and X Company v Chivas [2014] NSWCA 235) but in my view applying an objective test to an 11 year old boy requires some evidence about what might be expected from a person of that age.[2]

His Honour considered section 5R of the Civil Liability Act 2002 (NSW) which is in similar terms to the Queensland equivalent contained in section 23 of the Civil Liability Act 2003 (Qld) (“the CLA”) which provides:

  1. The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.
  2. For that purpose—
    1. the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
    2. the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.

The Court noted that the relevant consideration under subsection 2(b) was what the Plaintiff knew or ought to have known but there was no evidence on that point because the Plaintiff was not asked about it at trial.  His Honour held that he was not in a position to speculate about what an 11 year old person in the position of the Plaintiff knew or did not know.  His Honour noted that the Plaintiff had problems academically and with his behaviour prior to the accident and found the Plaintiff was “an unsophisticated child sitting in the back of a car”. 

His Honour went on to note the evidence not put before him in this way:

I do not know if any other matters were going on immediately before the accident that might have justified him not wearing a seat belt, I do not know how long the journey had taken before the accident and I do not know whether there was any reason that the plaintiff might have undone his seat belt. Based on what I was told by consent from the bar table, I do know that his mother insists he was wearing a seat belt.[3]

The Court noted that the onus was on the Defendant to establish contributory negligence and the Defendant had not done so.

Turning to causation, the Defendant relied upon the evidence of a Dr Griffiths who opined the Plaintiff’s leg injury occurred as a result of striking a fence after he was ejected from the vehicle.  The Defendant argued that had the Plaintiff worn the seatbelt he would not have struck his leg on the fence or otherwise injured his leg outside the vehicle.  His Honour noted that the views expressed by Dr Griffiths were predicated on a police report which suggested the Plaintiff struck the fence.  He noted that no evidence was called to establish the path of the Plaintiff’s body after it left the vehicle and therefore the Defendant had not established to the requisite standard how the leg injury occurred.[4]

His Honour concluded his findings on contributory negligence in this way:

In summary, I think the allegation of contributory negligence fails because of the absence of any evidence concerning what the plaintiff knew or ought to have known and secondly because the defendant has not established that the relevant injury was caused by the plaintiff’s failure to wear a seatbelt.[5]

SUMMARY

There have long been differing views of the undoubted proposition that the age of a child Plaintiff is relevant to determining the standard of care expected of the child in relation to contributory negligence.  It is generally accepted that children under the age of 5 are incapable of contributory negligence.[6]

The question of why the Plaintiff was not wearing a seatbelt seems not to have been put to him at trial.  It ought to be recalled that section 45 of the Motor Accident Insurance Act 1994 (Qld) permits the insurer to request information from the Plaintiff about the circumstances of the accident by way of statutory declaration.  Arguably, asking the Plaintiff why a seatbelt was not worn falls with the scope of information contemplated by the legislation.[7]

This case highlights that whilst the objective test remains[8] the Defendant must adduce evidence about what a child of that age ought reasonably know about the need for a seatbelt and what the child Plaintiff knew. 

Lastly, this case reminds us that as a matter of causation, the Defendant bears the onus in establishing that the wearing of the seatbelt would have either avoided the injury entirely or lessened the extent of the injuries sustained.