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[2004] WADC 74
District Court of WA
2004-04-23
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
Negligence - Motor vehicle accident - Single vehicle leaving road - Whether defendant removed ignition key while plaintiff driving - Whether plaintiff drove at an excessive speed - Turns on its own facts
1 GREAVES DCJ: This claim and counterclaim arise out of a motor vehicle accident about 10.30 pm on 4 January 2000. At the time, the plaintiff was driving his Holden Berlina Sedan east along Mortimer Road, Wellard, while the defendant was a passenger in the front of the car.
2 In the vicinity of Bruce Court, the car veered south across Mortimer Road, cut a path through the bush and rolled over before coming to a halt on its roof in private property.
3 As counsel for the plaintiff submitted, the ultimate issue for determination in the action is why the car left the road. The plaintiff alleges the defendant switched off the ignition, removed the keys and threw them out the passenger window, so that the plaintiff could not steer the car and so that the brakes of the car would not function.
4 The defendant alleges the plaintiff drove at a speed excessive in the circumstances and thereby lost control of the car. Before me, liability only is in issue.
5 The plaintiff and the defendant first met in March 1997. They developed a relationship that continued on and off until the accident on 4 January 2000. In June 1998, they began a de facto relationship. In late 1998, they were engaged to be married but the wedding arranged for December of that year did not take place. The parties did not resume cohabitation but otherwise their relationship continued. The plaintiff and the defendant each gave evidence it was an extremely sexual relationship. Each said from time to time they had intercourse in the car.
6 In the early evening of 4 January 2000, the plaintiff picked the defendant up at her home in his car. They drove to a Chinese restaurant in Kwinana for dinner. Their evidence differs somewhat about the mood of that occasion but they were agreed they left the restaurant less than happy.
7 They went to the plaintiff's car. The plaintiff gave evidence he was "pretty hazy" where they went after they left the restaurant. He said he recalled driving naked. In cross-examination, the plaintiff gave evidence "he would say" he took his clothes off but "he would have to say" he had no recollection of taking his clothes off. The plaintiff denied he tried to take the defendant's clothes off and tore her underwear. The plaintiff denied the defendant said she wanted to go home.
8 The defendant gave evidence they left the restaurant and went to the car where the plaintiff undressed so he was completely naked. She said the plaintiff tore off her underwear and tore her dress. The defendant said she was really angry. In cross-examination, the defendant said the plaintiff took her clothes off. She agreed there was a point she had no clothes on, but said she put her dress back on.
9 The plaintiff gave evidence he had no recollection of driving to the defendant's home and the defendant putting her underwear in the rubbish bin. The plaintiff said he remembered he became frustrated with the defendant. The defendant said the plaintiff threatened to kill himself so she returned to the car. The plaintiff did not recall he made such a threat.
10 The plaintiff drove a short distance to Mortimer Road with the defendant in the front passenger seat. The evidence of the plaintiff was that the defendant threatened to jump out of the car as they turned onto Mortimer Road. He said he accelerated to 80 kilometres per hour and told the defendant to jump. He said the defendant tried to open the passenger door and he leant over to stop her. He said he recalled her left profile on his lap and her arm up near the steering wheel. He then recalled darkness and going backwards. Thereafter he woke up in hospital.
11 In cross-examination, the plaintiff said he did not see the defendant's hand on the ignition keys. On 23 February 2000, the plaintiff made a statement that he saw "her hand on the keys". The plaintiff gave evidence that after he left hospital he formed an impression he saw the defendant's hand on the keys. The sworn evidence of the plaintiff is he did not see the defendant's hand on the keys.
12 The defendant gave evidence that after they left her home, the speed of the car "seemed so fast" and "out of control". She said she went to open the door but did not open it. She kept asking the plaintiff to let her out of the car. She said he leaned over her. She said the car skidded on the gravel verge and then veered right across the road and into the private property. The defendant said she may have tried to take the ignition keys but she did not take them.
13 In cross-examination the defendant repeated the plaintiff was speeding. She agreed she reached for the passenger door handle. She repeated she asked the plaintiff to stop the car and let her out. He did not stop the car. She emphatically denied she leant over the plaintiff, grabbed the keys and threw them out of the car.
14 Mr Milan Vasic gave evidence for the plaintiff that he heard stones hitting his link mesh gate followed by two thuds. He attended the scene. He said he heard no engine noise from the car and saw no lights. Mr Herbert Belohlawek gave similar evidence. Mr Kim White, an ambulance officer, attended the scene. He said the plaintiff was in no condition to speak.
15 Mr Jeremy Malkovic, an employee of the plaintiff, visited the scene the following morning. He observed no keys in the ignition and the ignition was in the off position. He said he thereafter found a set of keys to the plaintiff's car on the gravel verge on the north side of Mortimer Road. The statement of PC Adam Frost was tendered pursuant to s 79C of the Evidence Act and became exhibit 7. His evidence was that Mortimer Road is a sealed bitumen carriageway in good condition with provision for one lane of traffic east and one lane west. The area is rural residential. There was a gravel shoulder on both sides of the carriageway. At p 2 of exhibit 7, he states:
"On inspection of the involved Commodore sedan I saw that there was a set of vehicle keys from (sic) sitting on the inside ceiling of the vehicle. The keys were collected and logged on a property list."
16 Neither party placed reliance on this evidence, perhaps in the light of evidence that the plaintiff kept a spare set of car keys in the central consol of the car. On the evidence in this case, it is not open to conclude that the keys found by Constable Frost were in use on the night.
17 It is then necessary to consider whether it is open to conclude the keys found by Mr Malkovic on the gravel verge were those in use on the night, and then draw the inference the keys reached the verge because the defendant threw them out of the car.
18 In the absence of evidence of other keys at the scene (apart from those observed by PC Frost), that conclusion is clearly open and is the conclusion that the plaintiff invites the Court to reach. Is it the more likely conclusion? That question must be answered in the light of certain further evidence.
19 Firstly, Mr Martin Simms, a chartered consulting engineer, gave evidence of his inspection of the scene on 7 and 24 February 2000 when he took photos in exhibit 2 and subsequently drew the plan exhibit 1. He also gave evidence he inspected the plaintiff's car. The glass in all windows of the car was broken. He examined the front passenger window and observed glass fragments in the lower 30 per cent of the track and at the top. He found the winding mechanism in the fully raised position.
20 The chartered civil engineer, Mr Bohdan Generowicz, inspected the vehicle on 15 February 2000 and took the photos in exhibit 11. Photos numbered 10 and 11 show the front passenger window track. The witness observed the glass fragments in the lower tracks and concluded the window had been partly open at the time of the accident. He was not told the winding mechanism of the window was found in the raised position and did not inspect that mechanism. In cross-examination, he said if he had found the fragments in the top of the tracks observed by Mr Simms, he would have reached a different opinion about the position of the window at the time of the accident.
21 The defendant called PC Jones who attended the scene with PC Frost. He observed a very clear path of damage to vegetation on the south side of Mortimer Road. He referred to exhibit 1. He said there was 20 or 30 metres of disturbed gravel slightly to the west of Bruce Court. He considered the path of the car shown on exhibit 1 was not in accordance with his recollection. He said the disturbed gravel was in the area marked "approx 20 metres" on the plan. This witness did not see the set of keys found in this location by Mr Malkovic, although he inspected the area with his police torch. In cross-examination, he agreed the disturbed gravel may have been caused by something other than the plaintiff's car and further he may have missed the keys lying on the verge.
22 In my opinion, the evidence of PC Jones corroborates that of the defendant that the car skidded on the gravel verge before it veered across Mortimer Road. On the evidence it is not open to determine the precise speed of the vehicle at that time. The defendant believes it was about 80 kilometres per hour and I accept that estimate. On this evidence, therefore, I find the car skidded on the gravel verge at approximately 80 kilometres per hour, veered across the road and thereafter travelled up to 100 metres before coming to a halt on its roof in the private property.
23 Did this occur because the defendant removed the ignition keys? Counsel for the plaintiff submitted the Court should infer that the defendant removed the ignition keys so that the plaintiff lost control of the car and veered across Mortimer Road from the following facts:
(1) The defendant had a history of impulsive, emotionally inconsistent and erratic behaviour;
(2) Before the crash the defendant argued with the plaintiff and threatened to jump out of the moving car;
(3) Immediately before the crash the plaintiff unbuckled her seat belt and lay across the plaintiff;
(4) Mr Vasic and Mr Belohlawek heard two thumps but did not hear the sound of brakes or a car engine and when they reached the stationary car its lights were off and the engine was not running.
24 In my opinion, the evidence does not support the conclusion the defendant had a history of impulsive, emotionally inconsistent and erratic behaviour. The evidence is of a relationship between these parties in which they had their ups and downs. I find the defendant argued with the plaintiff because she wished him to stop the car and let her out. I find on her evidence she went to open the door but did not open it. I find the plaintiff leaned towards her and the car skidded on the gravel verge. I find the defendant did not lie across the plaintiff's lap. Given these conclusions, I am of the view the evidence of Mr Vasic and Mr Belohlawek does not support a reasonable inference that the defendant removed the ignition keys. I reach the same conclusion about the evidence of Mr Malkovic that he observed no keys in the ignition and the ignition was in the off position.
25 Having found the car skidded on the gravel verge at approximately 80 kilometres per hour, veered across the road and thereafter travelled up to 100 metres before coming to a halt on its roof, I conclude it is more likely than not on the evidence that the plaintiff did not remove the keys and throw them out of the car window. On the evidence of Mr Simms and Mr Generowicz, I find it is more likely than not that the passenger window was closed at the time of the accident. I find that fact is consistent with the evidence of the defendant that she did not remove the keys and throw them out of the window. I acknowledge this conclusion is not consistent with the evidence of Mr Malkovic that he found a set of the plaintiff's keys on the gravel verge, but in the light of the evidence of Constable Jones and the greater likelihood that the car skidded on the gravel verge, I consider it is the conclusion the Court ought to reach on the evidence as a whole on the balance of probabilities.
26 Accordingly, in my opinion, the plaintiff's claim fails. On the counterclaim, I find the plaintiff drove his car at an excessive speed shortly before the accident in the course of which he refused to stop the car and let the defendant out. I accept the evidence of the defendant the plaintiff was "extremely mad that night". In the light of the evidence of the events shortly preceding the evidence, I find the speed at which the plaintiff was driving was excessive in all the circumstances and resulted in the car skidding in the gravel and then leaving the road. In my opinion, there should be judgment for the defendant on the counterclaim.
27 Accordingly, the plaintiff's claim will be dismissed and the counterclaim allowed.
Skinner
Broadbent [2004] WADC 74