Menzies v Wheatley [2014] NSWDC 147

District Court New South Wales

Medium Neutral Citation: Menzies v Wheatley [2014] NSWDC 147 Hearing dates: 9 &10/04/2014 Decision date: 11 April 2014 Before: S Norrish QC Decision: Verdict for the plaintiff as to liability. Determination of contributory negligence of 10%. Catchwords: Civil - Negligence, causation, contributory negligence Legislation Cited: Motor Accidents Compensation Act 1999 Civil Liability Act Cases Cited: March v E & MH Stramare Propriety Limited (1991) 171 CLR 506 Ruddock v Taylor (2003) 58 NSWLR 269 Zaner v Zaner (2010) 78 NSWLR 702 Nicholson v Nicholson (1994) NSWLR 308 Podrebersek v Australia Iron and Steel Proprietary Limited (1985) 59 ALJR 492 Category: Principal judgment Parties: Jesse Leonard Menzies - plaintiff Natalie Wheatley - defendant Representation: Mr Carney - plaintiff Mr Reynolds - defendant File Number(s): 2012/259194

Judgment 1HIS HONOUR: I now give judgment in the matter of Menzies v Wheatley, a matter that was completed in evidence yesterday, but only as to the issue of liability. The Court heard evidence solely in relation to that issue. It was not favoured with any evidence relating to matters pertinent to the assessment of damages. It is agreed that subject to the judgment on liability the matter will be stood over to a later date, the parties indicating that they would wish to have some negotiations depending upon the judgment that I now give. 2I propose to enter a verdict for the plaintiff in this matter, but order that there be a reduction of what is the ultimate judgment, so far as damages is concerned, by a quantum of 10% to represent the contributory negligence that I have found by the plaintiff. 3Jesse Leonard Menzies has commenced proceedings against Natalie Wheatley in negligence pursuant to the provisions of the Motor Accidents Compensation Act, to which I will refer later. The plaintiff and the defendant were de facto partners who were both present in a motor vehicle, a 2010 Holden Barina sedan, registration number BNZ 74Q, which at approximately 1.20am on 5 December 2010 left the Newell Highway south of the township of Forbes and collided with a tree as they travelled to their home at Weelong, which I am informed on the evidence is 37 ks south of Forbes.It is alleged that the defendant leant over to the driver's side of the vehicle, grabbed the steering wheel and in so controlling the vehicle, caused it to leave the roadway and to drive down into a table drain and collide with a tree. The claim of the plaintiff is that he suffered serious injuries including a fracture to the left femur and other injuries. 4It is alleged that the injuries sustained by the plaintiff were a result of the "negligence, trespass and/or deliberate action of the defendant". I pause for a moment to point out that ultimately the case proceeded as one of negligence and I had no submissions in relation to the issue of intentional tort. 5The particulars of negligence are scarce, but they were not the subject of any particular complaint by the defendant. Relevantly alleged as particulars of negligence of the defendant are that, "(she) took control of the vehicle when she should not have interfered with the control of the vehicle" and "(she) failed to control the vehicle in a safe manner". It is also alleged against her that she deliberately took control of the vehicle with intent to cause injury, but that matter has not been pressed. 6The plaintiff was born on 12 May 1985 and thus, as I would understand the matter, was 25 years of age at the time of the accident. In due course there will be evidence as I said about the injuries that were suffered, but the short details are that the plaintiff, after being extricated from near the wreckage, was taken to Forbes Hospital and then taken to Canberra Hospital on 6 December 2010 where he remained until 17 December 2010. I need not go through the particulars of injury at this point. 7Apart from some documentary material produced, the oral evidence came from the two occupants of the motor vehicle. The plaintiff's account in his evidence-in-chief was that on the evening of 4 December 2010 he, like his de facto partner, worked at Woolworths and was involved with the produce department and what was called the "night fill" crew, which I take to be the group of people who stack the shelves in the evening. 8On that evening of 4 December there was a work function for the staff at Woolworths at a hotel, if I may call it that, or a tavern in Forbes within the commercial area of the town, known as the "Forbes Inn". The defendant had been in a relationship with the plaintiff for approximately five years before the accident. She was a few years younger than he. They lived together on what was described as Marsden Road, as I said earlier some 37 ks along the West Wylong Road, or the Newell Highway, to the south of Forbes. 9Their relationship ended a number of months after the collision, the subject of this litigation. Whilst the plaintiff continues to live in the same area, although not in the same house, the defendant has moved away from Forbes and now lives in Queensland. The plaintiff said he entered into a relationship with someone else by the end of 2011. 10It was put to him in the course of the conduct of the case that he had been regularly violent and abusive towards the defendant, which he denied. This matter was admitted as a line of questioning on the basis that it was relevant to understanding the state of mind of the defendant immediately prior to the collision in the circumstances as she disclosed them. 11The plaintiff said that on the evening of the party he had "a couple of rum and cokes" in his initial version. This was because he had to drive that evening. He said that his partner, the defendant, got involved in what was an argument occurring between another member of staff and his wife. Both the plaintiff and the defendant were friends of the wife. As a result of that argument the defendant and the plaintiff began to walk the wife home, or towards her home. 12The plaintiff came with them for a distance but then it was realised that the defendant had left her laptop computer and some other items back at the hotel or inn. He said that he called her "an idiot" and in response to that she "went off her head". He walked back to the hotel and either whilst in the hotel or entering the hotel he heard a smashing sound which, as it transpired, turned out to be the defendant breaking, cracking or smashing a window of a shop in some commercial premises nearby in Forbes. 13Eventually the plaintiff and the defendant left the inn together. They got into the motor vehicle. He said in the vehicle she, "continued to go off her head," and amongst other things he told her to "shut the fuck up". He said as they travelled away from Forbes to their home, she kicked the windscreen, causing it to crack. Then without notice she "pulled the steering wheel". He said he "hit the brakes and it (the car) slid off the road". 14There is no doubt that the motor vehicle struck the tree with considerable force and I have a number of photographs showing the area in which the incident happened and the damage done to the car. It is obvious from the evidence the plaintiff came off far the worse for wear, with a number of injuries that are particularised in the statement of claim. 15The plaintiff's memory of events immediately after was understandably sporadic. He lost some consciousness. He could smell something burning in the car. He had to undo his seatbelt and extricate himself from the motor vehicle. He remembered a taxi driver and eventually an ambulance coming. He remembered being at Forbes Hospital and then going to Canberra Hospital. He could not remember any conversations he had with police. 16A blood test was taken at some time not disclosed in the evidence, and he had a reading as I would understand it of 0.049 grams of alcohol per 100 millilitres of blood. Because he was on green P-plates, this constituted a blood alcohol reading within what is described in the legislation as "the special range" of the prescribed concentration of alcohol. He appeared at court some months later and apparently was found guilty, or pleaded guilty, and received a good behaviour bond pursuant to s 10 Crimes (Sentencing Procedure) Act 1999. As the case was conducted no issue arose that his plea of guilty constituted some type of admission relevant to this litigation. 17His evidence-in-chief was relatively short. Ultimately, it must be fairly said, in cross-examination he was a somewhat unimpressive witness. However, allowance should be made for the fact that he gave the appearance of not being a particularly well educated person and certainly not a particularly articulate person. At times he seemed to be at a loss as to how to deal with questions asked of him. His experience as a witness was not examined, but he gave the appearance of being a very inexperienced witness, as is often the case in these matters. 18A number of matters did arise in cross-examination that require comment. Some matters he contradicted himself about were peripheral, some more pertinent to the issues in the trial. As to his consumption of alcohol, as I said earlier, he initially said he had a couple of rums and coke. In cross examination he first of all suggested that he may have had a couple of "middies". When pressed on the matter he said he could have a couple of "schooners of VB", which I take to be a reference to Victorian Bitter. 19He said in fact a few minutes later that he was pretty sure it was VB schooners. Then a few minutes later said "I remember it was rum and coke". As the evidence unfolded it would appear that he had beer and 'rum and coke'. He thought it might have been Bundaberg Rum; he thought it might have been Bacardi Rum; two very different drinks. In the statement he gave in 29 September 2011, in the presence of his solicitor, he asserted that he had arrived at the party at 7 o'clock in the evening, the defendant arrived about 11pm, and whilst he was waiting he consumed "full strength VB beers" and also consumed "a couple of Bacardi Breezer drinks". 20In fairness to him and his disclosure about consumption of alcohol, it seems to me that the disclosure he gave in a statement initially for the purposes of the Motor Accidents Compensation Act is the more accurate account. Of course, the blood alcohol reading shows the presence of alcohol in his blood. There was some reference to cannabis being detected, but to what extent is not explained. He denied that he smoked cannabis that night. The metabolic absorption of cannabis is obviously slower than alcohol as is well known from conducting many cases in relation to such matters. In the circumstances of the matter it seems to me that cannabis is not a matter of any significance in this case and nor was it submitted to be. 21I have no evidence as to the taking of the test, but I assume, I think fairly safely, that given the circumstances it would have been a test conducted on his admission to hospital in the normal way. As to the extent to which alcohol had been either absorbed or eliminated, in the manner explained by toxicologists and other relevant experts that the Court has seen in many cases over the years, I do not know as there was no evidence on the matter. It was not suggested to him that he was affected by alcohol as such, and really no evidence was led from the defendant about the degree to which he was affected by alcohol. 22He was pressed by counsel for the defendant, who skilfully represented his client's interests, about the reasons that his former partner "went off her head". It was suggested that it was not solely because he had called her an idiot, but that he had used much stronger language and was abusive to her before she got into the car. He denied this. He was asked is there any other explanation he could give for her behaviour. Of course, he is not in a position to explain matters such as her state of mind at the time and other factors. The Court does not have any detailed evidence apart from some comments made by the plaintiff about her usual manner of conducting herself, although he suggested that she did conduct herself this way on other occasions. 23He denied that he was forcing her to get into the car as was suggested to him apparently based upon some hearsay material within the police records which were tendered from the COPS system. It turned out that the defendant did not assert that the plaintiff tried to force her into the car. 24In questioning about the events leading up to the collision, he said he was trying to calm her down when she was in the car, and he initially said he did not know whether she had done up her seatbelt, but she did not undo her seatbelt before the collision. He denied abusing or swearing at her whilst in the car, apart from telling her to "shut the fuck up", and he described her swearing and yelling and "carrying on". 25It was put to him that he held the steering wheel with one hand a slapped a number of times on the head and in the face. It was put to him that she yelled out a number of times to "let me out" almost from the time that he started driving the car. He denied that she tried to open the door or in fact opened the door and had to grab hold of her to force her to stay in the car. 26This witness made a statement on 25 August 2011 pursuant to s 73 Motor Accidents Compensation Act 1999. He had very vague recollection of the various statements that he made, although nothing particularly turns upon that. In that statement which he signed in the presence of his solicitor he volunteered the information which appears at para 7: "A few kilometres on the road home Natalie undid her seatbelt and grabbed the driver's wheel of the car and was apparently going to jump out the door whilst the car was going. As a result of this, I lost control of the vehicle and car(sic) went down the table drain and straight into a gum tree." 27He was asked about its terms and its inconsistency with his evidence. He was at a loss to explain that version of events so far as it was inconsistent with his previous evidence, although on examination, as I will point out later, the inconsistency may not have been as great as suggested to him. 28Another matter suggested to him was his contact with the defendant after they broke up. He admitted he had been in contact with her and gave details of his mobile phone number, 0432 485 348, which was his number then and now. He was asked early in cross-examination if he had asked the defendant to give a "particular version of the accident", or asked her to admit that it was "her fault". He denied this. He denied that he contacted her on 3 December 2012 in any way to influence her account. 29When this was suggested to him, he said that any discussion about money, would have been in relation to giving her "some money" to replace $10,000 that she had obtained from her father, and which the couple had used to set themselves up in their home. He suggested that he offered her money to replace what she spent in those circumstances. 30He was then taken to a text message sent at 2.32pm on 3 December 2012, the terms of which, and the reply from the defendant, form exhibit 2 in these proceedings. He was questioned about only one part of that message, which I will read in ordinary English, although to be fair, as the exhibit shows, the message is sent in the modern argot of young people communicating with one another through text message and Facebook and the like. That is with words written phonetically rather than completely. "You need to think about it. I can offer you 20% of whatever I get, which could be 20 to 30 thousand, so just stop it and relax, okay fuck(F-U-K)" 31Part of the message, however, also says this: "Look you and threats hurt, but do not bother me. Cause(C-O-C) if that's the type you are, well, I do not want nothing so fuck(F-U-K), what can I say Nat you jump the gun all the time. How have you lie(sic) for me you told the truth like I did. No lying in it." 32I have read that in ordinary English (as best I can), not in the spelling that is in the text message. When analysed, that message in context does not involve directly or indirectly an offer of financial advantage for the defendant to give an untruthful account, or to change or tailor her story. This is so, notwithstanding the reply of the defendant at 3.53pm on the same day, where she said, "Stick ya 20%, it's not worth ME gettin into trouble wit U-R results from the hospital in Orange. They know(K-N-O) I am lying. They told me they have been trying to get in contact wit me not your barrista(sic) theirs. I told them I need time to get my head around all these lies. I have been told coz they don't understand why Mark's trying to get in contact with me and they are going to find out..." 33The earlier purported innocent explanation for the discussion supposedly disconnected to the accident is clearly not the essence of the message that the plaintiff sent. But in context, notwithstanding the reply of the defendant, it does not necessarily have the sinister connotation that was suggested. When he was pressed about this matter, the plaintiff was not particularly persuasive in explaining how it had to do with unrelated matters of the relationship. He said in fact, "I don't know how to deal with your question." 34It also transpired that he sent a text message on the day he was giving evidence, and the day that the defendant was travelling down from Queensland by plane. This was an extremely foolish act. In that message, the full detail I do not have, because I do not have the transcript, he said words to the effect, "Do the right thing by me, please, I am fucked for the rest of my life." Likewise when he had earlier said that he had been in communication with her because he was looking forward to seeing her on that day, and it was put to him that that was not so, he replied that he didn't know how to deal with that question. 35I can understand of course the plaintiff having a vital interest in the outcome of the proceedings and endeavouring to get the best result for himself without necessarily causing other people to give untruthful accounts or untruthful or inaccurate detail in their accounts. However, his inability to explain himself in circumstances where he contradicted himself as to the circumstances of his communications with the defendant is a matter to be taken into account adverse to his general credibility, which I do. But given the totality of the evidence ultimately it is not decisive. 36This matter is distinct from allegation that were put to him that he asked the defendant to take responsibility for driving the car immediately after the collision. She did take responsibility for driving the car, although putting aside the technical issues of what driving constitutes, she certainly was not in the driver's seat. Ultimately I regard that aspect of the case as disconnected from the substance of the litigation. 37I am certain that lying in the ditch with a severely broken leg the plaintiff was not considering the terms of the Motor Accidents Compensation Act or his right to damages, or anything of the sort. He knew at the very least that he had alcohol in his bloodstream and he would or may be in trouble with the police for that reason. I could not regard those events immediately after the accident, in the context in which they occurred, as establishing a pattern of behaviour that confirms that what the defendant asserts is true, and is the true purpose of the plaintiff's communications with the defendant late in 2012, and almost two years afterwards. 38It is interesting to note that the communications on 3 December 2012 were almost the second anniversary of the collision. I point out that in regard to a number of matters both central and collateral to the circumstances of the accident in regard to the plaintiff's behaviour towards the defendant, the plaintiff was adamant that particular matters put to him concerning his conduct towards the defendant and on the night of assaulting her and forcing her to get into the car and being aggressive and abusive and ultimately being responsible for her behaviour were not true. 39Natalie Wheatley gave evidence in the defence case and gave evidence of details of their relationship, their personal circumstances up until the time of the accident and the like. She initially said in evidence they separated about five months after the accident, although a handwritten statement she made in July 2011 given, as I would understand it, to the plaintiff's solicitor, she said was made when they were still in that relationship. I have no reason to doubt that that is true. She said that she had written that statement under the plaintiff's influence. 40She gave evidence about working on the evening of 4 December and arriving at the work function after 11 o'clock, about 11.30pm. She drank what she described as a long neck Bundaberg rum mix drink, whilst walking up to the function, and drank other alcohol at the function up until 1am. She left with the plaintiff, as he said, to help a woman "Stephanie" who had had an argument with her partner. They walked some distance away from the hotel, and when asked about her property, she told the plaintiff that she had left her keys, her handbag and/or wallet and a laptop at the pub. He yelled at her and called her a "fucking dumb bitch" and then continued to abuse her. 41She said he was angry for reasons which weren't fully explained. Perhaps explained by the context of their relationship. But her response, when he was not present, was to kick the window of a shop "cracking it", a matter for which she was later charged, appeared in court and apparently ordered to pay compensation. 42She said the plaintiff told her to go to the car. She said she was crying and was "angry as well". The plaintiff went into the tavern and retrieved her property. She went to the car but could not get into it because she did not have the key. She said that he came out of the Inn and told her to "get the fuck in the car". She got into the passenger seat of her own motion, contrary, as I said earlier, to the suggestion made to the plaintiff that she was forced into the car. 43She said she put her seatbelt on and then, when in the car, the plaintiff slapped her on the back of her head as he had done on other occasions. She said that he told her that she was a "fucking idiot". He started driving out of town and she said that she continually told him that she wanted to get out of the car and he said to her, words to the effect, that when she got home she'd get some treatment or "you will cop it". 44He kept driving out of town in the route disclosed in exhibit A and onto the Newell Highway. She said that she opened up the door of the car on the passenger side to prove to him that she wanted to get out. She said that he put an arm around her and he, or she, closed the door. She said that he hit her in the face and that he had sped up when she opened the door. Although, in fairness to her evidence, she understood that he sped up in order to get her to close the door for her own safety. 45She then said, as I note her evidence, "I grabbed the steering wheel which meant that we'd lost control and went into the water on the grass and hit a tree". She said that she used her right hand and indicated in the witness box a pulling motion, pulling the steering wheel to the left, that is, to the left of the roadway. She said later in evidence that she grabbed the steering wheel because she was scared of him hurting her and she was also scared of him crashing the car "further up the road". 46No evidence was led from her as to the manner of his driving apart from when he sped up when she opened the door. There was no evidence from her about the speed or whether he was driving erratically. The only evidence she gave that touches upon this matter was his conduct within the car. 47She gave evidence about the text messages and the context of receiving them, and I have made comments about the full detail of those messages. The message from him could be construed as asking her to help him in his case. As to the later message, it indicates, to paraphrase the words that he used in the message sent on 9 April, that his injuries, or the collision for which he blames her, "ruined" his life. 48When the full message that was last sent to the defendant on 9 April 2014 was read to the Court after the plaintiff had finished his evidence, it had a different connotation to it as I earlier said. Amongst other things, the plaintiff indicated to the defendant that he was in "love" with her. This is something that I was not aware of at the time of the cross-examination of the plaintiff. 49She said that after the collision, she got out of the car. Apparently she didn't assist the plaintiff from what I understand of the evidence. Although, I draw no inference adverse to either witness from that. She said she spoke to the plaintiff at the scene and he said something to her. This was the only occasion in her evidence when she paused. In fact, she paused for what seemed an eternally long time before she volunteered that he had asked her to take responsibility as the driver "so he can get the insurance". She said then the police arrived. She was pretty sure that he said to the police that he was not driving at the time. 50Elsewhere in the evidence, particularly in cross-examination, she did give evidence the plaintiff was obviously seriously injured. She said there in her first statement that I saw, the handwritten statement from July 2011, that he was screaming in pain. In her first statement that I have mentioned, the handwritten statement from July 2011, she wrote in that concerning the circumstances of the collision, "then I grabbed [sic] the wheel (and) reefed it (the steering wheel) over causing the car to go down the embankment into a tree". 51This account, in fact, accords with the evidence she has given in this Court. The general claim by the witness that that handwritten statement as she serves it in cross-examination was untrue, suggesting as I would have understood her evidence that it was entirely fabricated, was not correct or accurate. In fact, a great deal of the contents of that statement were in accordance with her evidence. Matters that are not in accordance with her evidence are the matters pertaining to the conduct of the plaintiff in the car, particularly the allegations of him assaulting her, her screaming to get out and all those other matters. 52This brings me to another statement upon which the defendant was cross-examined. This was the statement given by her on 20 October 2011 apparently to an investigator from the insurance company. Her evidence in cross-examination was she supplied the information and this statement over the phone, and signed the statement at a later time. At this stage, she was living in Queensland and she had separated from the plaintiff. Her claim that she was still under his influence at that time I do not accept. 53There are many details of that statement that are in common with the handwritten statement and the evidence in this hearing. I appreciate, of course, there are parts that do not accord with the evidence, such as the claim in her handwritten statement et cetera that she "punched the plaintiff" in the body before she kicked the windscreen. Even the plaintiff does not allege this. The critical part of the statement, however, about which she was cross-examined is in para 20, where she asserted to the investigator this: "We were still arguing as we were driving into Forbes...and I took my seatbelt off and I was going to jump out of the car. I then punched him in the body and I grabbed the front passenger side - I kicked the front passenger side of the windscreen and it cracked. I then grabbed the steering wheel and I reefed it towards me and the car went out of control. We went into the table drain of water and then skidded into a tree on the left side of the road". 54In cross-examination she agreed, so far as her actions in grabbing the steering wheel, that what she put in that statement was correct. She conceded that she had taken control of the car before it left the road. She did not agree that she was intending that the car ran into the tree and I do not believe that that was so. It would be an act not only of stupidity, which was the act of grabbing the steering wheel, it would be an act of absolute madness. 55She did say, however in her evidence, that she was endeavouring by pulling the steering wheel to get the car to pull over to the road. On any version she has given, even taking just her version of this Court, she gave no warning to the plaintiff what she was going to do with the steering wheel. She did not tell the plaintiff that if he did not stop she would pull the steering wheel. It is certainly clear on her accounts that her action was sudden and unexpected. She took that action she said because she was "scared for (her) life". 56She understood that the statement of October 2011 was for the purpose of the inquiries being made by the insurer of the car. She agreed that she had lied to the police, but she said she did that because she was asked by the plaintiff. She said that she did not tell the truth, that is to provide details of the conduct of the plaintiff towards her, as opposed to the details of her own conduct, until November 2011. This gives the details of the plaintiff's conduct the character of recent invention. She was questioned about the text messages she received from the plaintiff in exhibit 2 and she said the lies that she was referring to included the lies that she told the police about being the driver. 57Police records of the incident and their investigations were tendered. This included evidence from physical examination that skid marks on the road or skid marks generally were measured to be 70 metres long. There were other matters reported to the police, one of which I will refer to in the assessment of the evidence under the heading submissions. 58The defendant's submissions directed the Court to the issues for determination in this case, both as to liability and the issue of contributory negligence. The Court was reminded of the proceedings under the legislation invoked parts of the Civil Liability Act. Particularly I point out that s 3B(2) CLA provides that in relation to the Motor Accidents Act, Part 1A Divisions 1-4 and 8, that is, sections 5 to 5I and 5R and 5S, including that relating contributory negligence, applied. 59Counsel took me through ss 5B and 5D of the Act and it was submitted in respect of those matters relevant under 5B, that on the facts of the case, the relevant issue given the various sub paragraphs in s 5E(1), which are conjunctive, was whether "in the circumstances, a reasonable person in the person's position would have taken those precautions (the person being the defendant)". The Court was also enjoined to have regard to what has set out in relation to s 5B(1) and (2). This I do. 60It was conceded by the defendant that she owed the plaintiff the a duty of care. The duty of care extended to not interfering with the plaintiff's safe control of the motor vehicle. 61The Court was also taken to s 5D of the Act. Essentially, it was submitted that the critical issue concerning the terms of s 5D(1)(b), concerning the scope of liability, arose. It was submitted that the plaintiff had not established the relevant scope of liability because the circumstances were such that the plaintiff ought to have stopped the car when the defendant asked him to do so, evidenced by her attempt to open the door, her claims of fear for her safety and her wish to get out of the car amongst other matters. 62In the course of the discussion it was agreed that there were no particulars in the evidence that the plaintiff was driving in an excessive speed, or that the plaintiff was driving erratically or dangerously, save for the suggestion that was made by the defendant that she was fearful for her safety if there was a crash up the road, and that is why she pulled the steering wheel amongst other reasons she offered. 63It was conceded in the factual matrix of the matter that if the Court was not satisfied that she was being assaulted in the car, even allowing for the fact that she said she wanted to get out, this would make it "difficult" for the defendant to succeed, or having regard to the onus being on the plaintiff, for the plaintiff not to succeed. It was again emphasised that on her evidence, she had three options. It was submitted by the defendant, either she stayed in the car and was assaulted further, or she got out of the car in some way or she tried to get the car to move to the side of the road. 64Relevant to the facts of the matter, counsel for the defendant referred the Court to the statement of the plaintiff, which is exhibit 1, where he had said "a few kilometres on the road home, Natalie undid her seatbelt then grabbed the drivers' wheel of the car et cetera", that I earlier read. It was pointed out that part of the statement was inconsistent with his evidence and that he did not see her undo the seatbelt nor did he see her open the door. This was relevant it was said to the assessment of the plaintiff's credibility in relation to the events inside the car and was also consistent in part with the account given by the defendant. 65It was submitted that the plaintiff's claim that the defendant had reacted badly to the statement that he had made in the street at Forbes that she was "an idiot" did not stand up to examination. It was also submitted that it was more probable that she was assaulted in the car, causing her to take desperate measures to protect herself. 66In relation to the issue of causation, he took the Court to a pre-Civil Liability Act case, well known, of March v E & MH Stramare Proprietary Limited (1991) 171 CLR 506, particularly the judgment of Dean J, at 524. I note of course there has been considerable discussion in the Court of Appeal as to whether s 5R - s 5D accords with the common law. There are the views of Justice Ipp in Ruddock v Taylor (2003) 58 NSWLR 269 at [89], the author, or the architect, of the report upon which much of the Civil Liability Act is based. However, there has been doubt cast upon Justice Ipp's view about this matter in Zaner v Zaner (2010) 78 NSWLR 702 at [5]. Be that as it may, ultimately, this case turns on its facts in the context of the terms of the Act, and no issue of statutory construction or the applicability or not of common law principles arises. 67It was submitted that an assault did take place in the car and it was more probable than not that she attempted to get out of the car because she was provoked by the assault and it would not be appropriate for the scope of the responsibility for negligence to extend the responsibility of the defendant under the Civil Liability Act to a situation where she acted because she feared for her life. 68With regard to contributory negligence, the Court must take into account s 5R and s 5S CLA. It was generally submitted by the defendant that the contributory negligence was significant. If she did ask him to stop the car and he refused and that he had verbally assaulted and physically assaulted her, he had not properly controlled the car in his endeavours to restrain her or assault her. Counsel for the plaintiff pointed to the fact that there was no evidence of any driving of the plaintiff, contemporaneous to the actions of the defendant, that was reckless or suggested that he was exceeding the speed limit, had no control of the car or was not properly controlling the car. As to the factual scenario put by the Crown that was said to make the conduct of the defendant reasonable, counsel for the plaintiff submitted that there were other things that she could have done. She could have calmed down. She could have called the police, although this was not put to her it was conceded, or she could have pulled the window down. I do not understand how getting some fresh air would have changed the situation. 69He pointed out that the evidence revealed that she took control of the car which caused the car to go off course and run into the tree. He submitted that there was no doubt, to use the plaintiff's words, that she was "off her head" and that it was her actions that caused the damage to the plaintiff and she was negligent. 70With regard to contributory negligence, it was not conceded there was any contributory negligence on the part of the plaintiff. He did everything that he could reasonably do until she took control of the car. If there was any contributory negligence, it was slight. Counsel for the plaintiff was asked to address the issue of consumption of alcohol not addressed by counsel for the defendant. He said that there was no evidence that the plaintiff's control of the car was impaired. 71The facts were the plaintiff was confronted with an uncontrollable person under the heading liability. The pleadings allege negligence and other deliberate torts on the part of the defendant, but the matter is to be determined as a case being conducted on the basis the defendant was negligent in her actions in grabbing the steering wheel and in so doing, she breached her duty of care to the plaintiff and ultimately, by regard of the tests in s 5B and s 5D, she was liable under the Act for her negligence. The deliberate torts as I have said have fallen away. 72There is no doubt, it is submitted, that the action of the defendant in grabbing the steering and "reefing it" significantly interfered with the control of the motor vehicle by the plaintiff causing the car to leave the road and ultimately collide with the tree. 73Although the defendant may not have intended that there be such a collision, I am satisfied by the plaintiff, the plaintiff bearing the onus in relevant matters, having regard to all the evidence that the defendant did take exception to something said to her by the plaintiff after she left the Forbes Inn, when he discovered her valuables in the hotel. 74However, there is absolutely no suggestion by anybody of any assault by him upon her at that time, until she said she got into the car. Yet, the defendant conceded in evidence that she kicked and damaged the shop window and that had absolutely nothing to do with the plaintiff when he was not immediately present. 75It is clear that she must have been affected by alcohol to some extent. She had a higher blood alcohol reading that the plaintiff. It is clear that she reacted before she got into the car, angrily, emotionally and violently for no rational reason. The plaintiff did not force her to get into the car. It is to be borne in mind that at the time they got into the car, as I understood the evidence particularly from the statement given by the defendant in October 2011, they had to drive 37 kilometres to their jointly shared home on the West Wylong Road. 76I accept that the defendant was angry and emotional when she was inside the car. This is reflected in the self-admitted fact by her that, again for no good reason, she kicked out at the windscreen with considerable force. Whether she damaged the windscreen or not, this could not reasonably have anything to do with a desire to get out of the car other than to display her petulance. She claimed that she wanted to get out of the car almost as soon as the journey started. This I do not accept. If she did not want to travel with the plaintiff in the car she could have refused to get into the car. There is a conflict between the plaintiff and the defendant as to the events inside the car. But that conflict ultimately is confined to what she said the plaintiff did to her. 77I am not satisfied that the defendant was assaulted by the plaintiff in the car as it was alleged. In my view this is a recent invention by her, although she gives an explanation for that. But there are other matters to take into account. It is, probably collateral to the first point I make, inconsistent with earlier statements she gave, one of which she gave when she lived in Queensland. This account she gives in this Court was only volunteered at the time of the exchange of text messages in exhibit 2. 78Further, no injury was identified by the defendant as having been caused by the alleged blows to the head and the face. Even if it was true that they had a volatile relationship and he had struck her in the past, which I hastily say is not established with any particularity upon which the Court could act, it did not mean or establish that the plaintiff struck her in the car. In answer to the defendant's submission that the actions of the defendant in the car were the result of amongst other things physical assaults by the plaintiff, the difficulty is that the defendant, putting aside the alcohol that she drank, had been emotional and acted with physical violence toward property in a very short time afterwards without being prompted by any physical action of the plaintiff. 79The other matter I take into account, although the defendant was not questioned about this by anybody, is the fact that after the collision, the defendant took responsibility for being the driver of the car, which led to her being breathalysed. She said she was asked to do this by the plaintiff and that seems as a matter of common sense to be so. She admits that she did this, however, her evidence is that she did this notwithstanding the fact that it was only a very short time after the plaintiff had been assaulting her and threatening her life or causing her to fear for her life. This is unlikely. 80The probability that learned counsel for the defendant posited that she grabbed the steering wheel because of an accumulation of actions by the defendant to my mind ignores the irrationality of her conduct in the manner I have set out beforehand and her subsequent willingness to take the blame for something that he had done, that is, "drive the car" in the fashion of sitting behind the steering wheel in the driver's seat. Of course, he may have asked her to take responsibility because of the insurance for the car. It is not reasonably suggested it was "insurance" for his bodily injuries. 81But the reality was he asked her in circumstances where she had twice the blood alcohol level that he did, at a time when he was seriously injured and according to her "screaming in pain". As earlier indicated, even if the allegation was true that he asked her to do this, I do not regard the matter as reflecting adversely upon his credibility in relation to critical issues in this case, particularly given his condition at the time. 82Having regard to her global disavowals of previous versions she has given, there are many matters in her previous statements consistent with her evidence in this Court. The manner in which she gave the evidence and her willingness to volunteer information adverse to the plaintiff and unresponsive to questions and the inconsistencies between her earlier statements and the versions she proffered sometime in late 2012, leads me to the view that the witness cannot be regarded as inherently reliable. She has not been consistent in the versions she has given. Her credibility is seriously compromised. 83I have earlier referred to the plaintiff's evidence and the inadequate explanation he gave for the terms of paragraph seven of exhibit 1. I examined the paragraph more closely with time to reflect upon it after the evidence was given. In its terms, whilst it is inconsistent with his evidence that he did not see her undo the seatbelt which was at least his original position, the paragraph in fact does not have him saying that she opened the door of the car as she says. 84As I earlier pointed out, the key part is she "grabbed the driver's wheel of the car and was apparently going to jump out of the door while the car was going". They're not the same thing. Its terms literally are not that strikingly different from his version in this Court save from the positive assertion that she did not undo her seatbelt. That version satisfies me in conjunction with other evidence that at some point, she did threaten to open the door of the car. 85As I have formed the view that the defendant has sought to exaggerate her evidence in this aspect, in material respects, I am not satisfied that the defendant either opened the door of the motor vehicle or continuously demanded to be let out because of the conduct of the plaintiff. I am not satisfied that the plaintiff assaulted her as she alleges or that she feared for her safety in the manner in which she described. 86The fact is that the act of grabbing the steering wheel as she did in the sudden and violent manner that she did, was a reckless and, dare I say it although I do not mean to be disrespectful to her, "stupid" act. It is more consistent with unprovoked and irrational behaviour such as kicking a shop window and then in the car kicking the windscreen of the door. 87Of course, where two witnesses have given evidence, each in a somewhat unsatisfactory manner, and may be in some respects regarded as unimpressive witnesses, where resolution of the case turns upon a conflict in their accounts in circumstances where the plaintiff bears the burden of establishing relevant matters in proof his claim on balance, there is some difficulty in resolving elements of the conflict. 88Ultimately, however, there are matters admitted by the defendant as I have already pointed out above and otherwise established independently of the two witnesses, such as the force of the collision, that militate against acceptance of the defendant's evidence and preference for the evidence of the plaintiff. I bear in mind the adamant denials of wrongdoing suggested by the defendant's counsel. 89I appreciate, of course, the importance of considering prior inconsistent statements. But, with respect, the inconsistencies between the evidence of the defendant and her prior statements are more significant and profound than the claimed inconsistencies between prior statements made by the plaintiff and his evidence. 90I have had regard to the text messages to which I earlier made reference, particularly to the text messages in exhibit 2. No comment was made about these as I noted in the final addresses by anybody. But I must address them. On one view of it, the messages suggest the plaintiff was seeking to influence or pressure the defendant. The messages ultimately were not preferred to by the parties in submission as I said. 91My view is that the reference to giving the defendant "20%" has to be seen in context. Although it was an offer of something from this action, it is not inconsistent with his explanation for the text message. One needs to consider the comments made by him beforehand which support his credibility. 92With respect to the defendant's response that he could "stick his 20%" because it was not worth the defendant "getting in trouble", that response does not burden the plaintiff with an admission on his part that he is lying in pursuit of his claim. In fact, quite the contrary. I note in relation to this matter that when the plaintiff was cross-examined about these messages and when he was re-examined, he was not asked to comment at all upon the proceeding comments which put the passage referred to in the evidence in context. 93His text message to the defendant when she travelled to Court on 9 April was a very stupid act. But again, there was a wider context that was not put to the plaintiff when the whole message was later read that might suggest it did not have a sinister connotation. Again, this was no subject of particular submission. Of course, the plaintiff's treatment of it did not do him a great deal of credit in the giving of his evidence. But then again, he came across as a relatively simple, not highly educated young man with poor capacity to articulate himself. 94Also, sitting in the witness box reading text messages presumably sometime after they were sent, he may have not done himself much justice. I appreciate, of course, that lack of intelligence, or a lack of education, is no excuse for not telling the truth. But I do not believe that is the issue in this case. 95I have taken into account some of the evidence that's available to the passage of the car taken from police reports although not much reliance was put upon that matter. I have taken into account the evidence given by the plaintiff himself that when the defendant grabbed the vehicle, he "braked" which obviously must have done heavily. But on his version, this was an instinctive reaction. It must have contributed to some sense to the ultimate result given the fact that by braking, as he did, it took away his capacity to control the steering wheel. But so had, of course, the defendant. The braking was a reaction to her conduct, not his own. 96There was one piece of evidence not the subject of any comment although it did arise in the evidence. This is when the plaintiff was in pain beside the car yelling out to the defendant, "look what you've done", reflecting the fact that she was responsible for the pain that he was in, having wrestled the steering wheel or his control of the steering wheel away from him and being the major contributing cause to the car veering into the tree. She wanted the car to go to the side of the road, she said, but in circumstances, she grabbed the wheel when the car was apparently outside the city limits of Forbes, travelling along the new highway. She obviously had no regard for the consequences. 97It is in these circumstances that I have concluded that the plaintiff has established that the risk that the defendant ought to have known was foreseeable. It was obviously not insignificant. These matters were not in dispute. In the circumstances, a reasonable person in the defendant's position would have taken the relevant precautions of which the subparagraph speaks. 98In coming to that conclusion, I have had regard to the relevant aspects of s 5B(2), particularly subparagraphs (a), (b) and (c). I have had regard to s 5C, with regard to the issue of causation. I am satisfied that the plaintiff has established that the negligence was a necessary condition of the occurrence of the harm and in the facts of this case, it is appropriate for the scope of the negligent person, that is the defendant's liability, to extend to the harm so caused for the reasons I have set out from the facts above. I note the matters I am required to take into account, not as exclusive matters, set out in s 5D(3), (4). 99With regard to the issue of contributory negligence, as earlier pointed out, the terms of s 5R are to be considered along with s 5S although this is not a matter where the contributory negligence found requires the Court to determine a reduction of up to 100%. The section provides that principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. 100The section also provides for that purpose, the standard of care required of the person who has suffered harm is that of a reasonable person in the position of that person, that is in this case, the plaintiff. The matter is to be determined on the basis of what that person knew or ought to have known at the time. 101It has been said in the practice of the text of Mr Villa. "Annotated Civil Liability" that s 5 gives legislative emphasis to the principle that the standard of care in determining both negligence and contributory negligence is the same as I said was referred to the provisions of the Act. I note the matters raised by counsel for the defendant. 102I also note, so far as the common law position may be relevant, to other decisions such as Nicholson v Nicholson (1994) NSWLR 308 and also the decision of Podrebersek v Australia Iron and Steel Proprietary Limited (1985) 59 ALJR 492 at 494, where the High Court of Australia made a general observations relating to the issue of contributory negligence. 103In the context of the principles to be applied, there is, in this matter, some reduction required. On the evidence the contributory negligence of the plaintiff was not as significant as submitted by counsel for the defendant because I am not satisfied that the plaintiff was relevantly distracted by his own actions in striking the defendant as she alleged or by not stopping when she continuously told him to stop or as a result of him delivering some continuous verbal tirade of abuse. 104That having been said, I am satisfied that for a period of time before the collision, which I understand the evidence was for a distance of approximately 5 kilometres from where the car was parked, perhaps a little more, perhaps a little bit shorter, he had a passenger in his car that was behaving emotionally and sometimes irrationally, kicking out at the window and to use his own words "apparently trying to open the door" of the car. This occurred in circumstances where he was aware of these matters. The reasonable thing to do would have been to pull the car over either to subdue the situation in some manner or at least minimise the risk of distraction to his control of the vehicle. 105The other feature of the matter that was the elephant in the room of which nobody spoke until I raised it, was the fact that he had been drinking alcohol recording the blood alcohol level that I have earlier outlined. It was not suggested of course that this had a substantial impairment upon his control of the vehicle, but it would have had some effect upon his capacity to react to the circumstances in the car as I have found them. 106I hasten to say that the most significant cause of the car leaving the road were the actions of the defendant. She effectively and very suddenly took control of the car away from him, without much time to react. His action in heavily braking as I have earlier referred to it, if it contributed to the impact, no doubt was an simply an instinctive reaction that was generally reasonable in the circumstances of the sudden conduct of the defendant. However, the probability is that to some extent, his reaction was affected by the ingestion of alcohol but not substantially so. 107I have determined that the award for damages ultimately to be determined should be reduced by a quantum of 10% to represent the contributory negligence that has been established. In due course, I will enter a verdict for the plaintiff and judgment in terms of this judgment so far as liability is concerned of course. As I have earlier indicated, the assessment of damages was not possible in these sittings. The parties apparently were not in a position to deal with that matter and sensibly asked me to deal with the issue of liability first. 108I propose to list the matter for directions before me in Sydney at 9.30 on Wednesday 21 May 2014. I point out in relation to the matter I am sitting on Friday morning the last day of the sittings at Orange District Court, having conducted a two week crime sittings and one week of civil work, and the difficulty I have, and the reason I have given this judgment in this form, is because I will be out of the jurisdiction for five weeks from tomorrow and any delay in determining this matter, so far as I can determine it, would have left the parties in suspense for a much longer period than ordinarily would have been the case had I returned to Sydney on Monday. 109That will be transcribed. The revision of the transcription of course will have to be done by me when I get back to Australia on 16 May. I apologise for that, it's not my fault. It's just the way things work out. But I was anxious to get as much done as I could. I thank you very much. 110OLSEN: Thank you, your Honour. 111HIS HONOUR: And you'll have an agent there on the-- 112OLSEN: On the 21st. 113HIS HONOUR: 21st, yes. 114OLSEN: We might even get Mr Carnie there. 115HIS HONOUR: Well, whoever can turn up. But I will just be giving directions in relation to the issue of the further resolution of the matter but it may - the parties said they were going to have some negotiations. That'll be a matter for the parties in due course to resolve. 116OLSEN: That's the intent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2014