March 2018


Taxi driver cleared of ‘terror ride’

by John Reynolds, KT Journalism

A taxi driver who panicked and crashed his cab after being "terrorised" by his passengers during an "unhappy ride" cannot be held liable for their injuries, the Australian Capital Territory Supreme Court has ruled.
Associate Justice Verity McWilliam cleared Rohan Wilfred Jacobsen of liability and negligence, ruling he had acted reasonably when he refused to stop his cab before losing control and hitting a light pole early on 6 November 2011.

She said Mr Jacobsen panicked after at least two of his three drunk passengers threatened to "smash his face in" and was in genuine fear for his life. He believed his only option was to ignore his passengers' demands to stop and keep driving until he could find safety.

But his arms went limp after one passenger grabbed his shoulders as he entered a roundabout and he crashed into a light pole.
The passengers sued Mr Jacobsen for physical and ongoing psychological injuries, arguing his negligence had caused the crash and their injuries.

Joseph Cockburn sought $893,725 in damages; William Sellick-Wilson, $62,500; and Jessica Pearse, $152,062.

On 13 December last year, Associate Justice McWilliam said the circumstances of the incident were confusing because of Mr Jacobsen's panic and inability to fully recall details; and the three passengers' intoxication.

But by using each person's limited recollections and CCTV footage, she could determine what probably occurred, and found Mr Jacobsen blameless.

She said Mr Jacobsen was flagged down by the trio outside a Canberra nightclub just before 1am and he saw Mr Cockburn was intoxicated and needed help walking. Mr Sellick-Wilson was also heavily intoxicated, as was Ms Pearse to a lesser degree.

All three sat in the rear passenger seat, with Mr Cockburn directly behind the driver and Ms Pearse next to the other rear door.

During the journey, all three asked to be taken to a nearby 24-hour fast food restaurant for takeaway food. Mr Jacobsen told them they could not eat in the taxi but offered to drive them to another restaurant near their destination where they could take their uneaten food home while it was still warm.

They began abusing him for not taking them where they wanted and demanded he stop the cab to allow them to urinate. When he refused, Mr Cockburn and to a lesser extent Mr Sellick-Wilson verbally abused Mr Jacobsen and threatened to urinate in the cab.

Associate Justice McWilliam said she accepted the men did not intend to soil the cab but, after their earlier abuse, the threat was enough to make Mr Jacobsen feel "extremely uncomfortable and vulnerable".

She said all three, including Ms Pearse who was a student personal trainer, were in their 20s and of athletic builds. She said Mr Jacobsen would have genuinely feared injury from an assault.

After the passengers again threatened to soil his cab, Mr Jacobsen "had enough", stopped the cab and ordered the trio out but they refused to leave. A heated argument, including threats to "smash [Mr Jacobsen's] head in", continued for several minutes before Mr Jacobsen resumed driving.

Associate Justice McWilliam found the passengers believed they had convinced Mr Jacobsen to drive them to a nearby roadhouse where they could arrange alternative transport. But Mr Jacobsen had no intention of taking them to what he felt was a secluded area and drove in another direction, seeking "back-up" from other cab drivers or police.

The lack of communication caused more confusion and fear for all in the cab and the passengers started to demand to be let out, while Mr Jacobsen called for help on his radio and continued driving.

"The [trio] moved from a position of a point-blank refusal to leave the taxi when it was stopped, to a desire within the space of a minute that the taxi stop immediately so they could get out," Associate Justice McWilliam said.

"Ms Pearse became very upset in the taxi and started to cry. [Her] evidence was that as soon as she started to scream, ‘Please stop the f***ing car. Please stop, stop, stop", both Mr Sellick-Wilson and Mr Cockburn then joined in her request."

Associate Justice McWilliam accepted Mr Jacobsen had contributed to the concerns in the rear of his cab by not telling his passengers what he was doing or where he was going. But she believed by that stage he was having a panic attack and was thinking only of seeking help.

Mr Cockburn kept loudly demanding the cab be stopped; pulled tightly on Mr Jacobsen's seatbelt, pinning his arms; punched his headrest several times; and grabbed Mr Jacobsen's shoulders from behind.

Mr Jacobsen told the court he felt panicked; lost control of the pedals; his arms went limp; and he felt dazed before the cab left the road and hit a power pole.

Associate Justice McWilliam said Mr Jacobsen's actions were reasonable in the circumstances because of the fear he felt.

"It was not unreasonable that Mr Jacobsen panicked and, rather than stop the taxi, continued to attempt to drive the vehicle to what he thought might have been safety or simply to prevent the passengers having better access to harm him once the taxi had stopped," she said.
"Mr Cockburn's conduct induced a state of panic or terror where [Mr Jacobsen] thought he was going to be severely physically assaulted to the point of death. It was in every sense a circumstance where [Mr Jacobsen] was forced to act in the agony of the moment."

Cockburn v Jacobsen [2017], ACTSC 380, 13/12/17    

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