Widera v Reid [2002] ACTSC 26 (12 April 2002)

Last Updated: 17 April 2002

Stanislaw John Widera v Phillip William Reid [2002] ACTSC 26 (12 April 2002)

CATCHWORDS

NEGLIGENCE - car and pedestrian - intimidated driver fleeing - pedestrian kicks car - duty of care

DAMAGES - fractured ankle

Abdallah v Newton (1998) 28 MVR 364

Cusack v Stayt [2000] NSWCA 244, (2000) 31 MVR 517

Harper v Blake [1999] NSWCA 224, (1999) 29 MVR 389

No. SC 423 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 12 April 2002

IN THE SUPREME COURT OF THE )

) No. SC 423 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STANISLAW JOHN WIDERA

Plaintiff

AND: PHILLIP WILLIAM REID

Defendant

ORDER

Coram: Master T. Connolly

Date: 12 April 2002

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the defendant

2. Plaintiff to pay defendant's costs

1. This is a claim for damages for personal injuries arising from an incident which occurred on 17 November 1997 when the plaintiff, who was a pedestrian, was struck by a motor vehicle being driven by the defendant. It is not denied that the plaintiff came into contact with the defendant's motor vehicle, and as a consequence sustained a fracture to the left fibula, and some dental injuries, as well as lacerations. The plaintiff and the defendant, however, give dramatically different versions of the incident.

2. The plaintiff says that on this evening he was attending at the premises of his former defacto spouse to assist her with their children. He says that after collecting the children from school he and Ms Towne, his former partner, did some gardening work in the front of the house. He says they got the children dinner and then had them showered and to bed by about 8.30, and had a late supper. He says he had three small glasses of wine with dinner. In cross-examination he said that it had been a perfectly friendly happy evening.

3. He says that he then heard the noise of a vehicle driving on to the front lawn area where they had been doing the gardening, and he looked out and saw a car on the grass. This was at about 10 or 10.30pm. He says that he turned on the front door light and opened the front door to get a better look and to try to see who it was and get the number plate. He says that he saw a VW kombi cut off utility type vehicle, which he did not recognise. The vehicle he says "did a big wheelie" across the lawn, and he went down to the road to try to get the number plate. He says the vehicle left the block and turned to proceed up the street. He said the VW "might have just lost it on the wheelie".

4. In his evidence in chief he said that he could not estimate the speed of the vehicle. In cross-examination he said, "you can't remember everything that happens when you get hit by a car taking off to 80 or 90 kilometres an hour or whatever." He agreed, however, that he didn't know what speed the car was doing.

5. Mr Widera agreed with a sketch diagram shown to him by counsel for the defendant of Ms Townes' house. Mr Widera marked this diagram, which is exhibit 1, with the course he says the VW took. He says that it hit him as he was standing on the kerb. His markings would indicate that the vehicle overcorrected as it turned out of the drive, and so swerved across on to the wrong side of the road.

6. The plaintiff says that he ran to the side of the road to try to get the registration number of the vehicle. He says that he stopped by the kerb, and the VW was then about 10 top 20 feet in front of him, and moving towards him across on to the wrong side of the road. It was put to him that he would have had time to move back. He disagreed. He says he wanted to check the registration number of the vehicle. I find this hard to accept. If he was standing by the kerb and saw the vehicle approaching from 10 to 20 feet he would have had time to step back.

7. He says that he at no time knew who the vehicle belonged to, and did not know who Mr Reid was. After the incident he went inside the house, and he says he consumed about 6 large glasses of wine for his nerves. He said in cross-examination that he knew that after the incident Ms Towne left the premises and went to Mr Reid's premises and spent the night there. He was adamant that he had never met Mr Reid before this incident, and did not know who he was.

8. The defendant's version of events is very different. He says that he well knew Mr Widera, and that Mr Widera was not happy that he, Mr Reid, was forming a relationship with Ms Towne. He says that he was introduced to Mr Widera by Ms Towne some months before the incident. He says that at first Mr Widera was friendly, but then became frosty and surly. He says that in about August or September 1997 Mr Widera told him that he did not want Mr Reid to come around to Ms Towne's premises or have anything to do with Ms Towne, and said that he would assault him if he did. He says that at the time of this conversation Mr Widera was affected by alcohol, and he was scared by the threat. He says that in fact he did not go around again until the evening of 17 November 1997.

9. Mr Reid says that he received a phone call from Ms Towne asking him to come around that night. He says that he asked if Mr Widera was there and was told that he was not, and that things would be okay. He drove around in his 1977 twin cab VW Kombi Ute. He says it was a four speed manual in poor condition, and he says that it could not be re registered the year after the incident. He says that he drove onto the lawn, which is where cars usually parked. He says he stopped the vehicle, got out, and went to the door and knocked. He says Mr Widera looked from the lounge room, and began shouting obscenities at him. Mr Widera came towards the door, and Mr Reid ran to his car. He says that he was in fear, and drove away as quickly as he could, spinning the wheels on the grass. He says that he thought Mr Widera was going to "belt me one". He says Mr Widera had bloodshot eyes and was unsteady. He says that as he drove off he thought he could hear yelling. He says that he proceeded in the correct lane, and then Mr Widera came onto the road and made contact with his car. He says that he saw Mr Widera running towards the car and making a movement as though he was going to kick the car. He then heard an impact. He says that he was doing 30 to 35 kilometres an hour at the time. He says that he continued home as he was in fear of his safety.

10. I thus have two very different versions of events. Mr Widera says there was a peaceful evening disturbed by an unknown visitor doing a wheelie on his front lawn, and that when he went to investigate and get the number of the vehicle he was hit as the vehicle lost control and swerved towards him.

11. Mr Reid says that Mr Widera knew and disliked him as he was having a relationship with Ms Towne, Mr Widera's former partner, and that Mr Widera had made threats. He says he came on Mr Townes' invitation, and when Mr Widera saw him he abused him and came towards him in a rage. He says Mr Widera was affected by alcohol. He fled in fear, and says that Mr Widera ran on to the road and kicked his car as he was fleeing.

12. Ms Towne did not give evidence. Mr Widera said in cross-examination that he had had a discussion with Mr Towne the previous day, and thought she might give evidence in his case. She could support both versions, as Mr Widera says that she would agree that he did not have much to drink that night, and Mr Reid says that she would confirm that Mr Widera knew and disliked Mr Reid. It seems to me, and counsel endorsed this, that an inference could be drawn both ways from the absence of Ms Towne as a witness.

13. It is common ground that after the incident Ms Towne left her premises and went to Mr Reid's premises. There was an ambulance report tendered as part of the plaintiff's medical reports which contains a note "pt(patient) hit by car after domestic". It is unclear whether this history was taken when Ms Towne was present or not. The ambulance report also states "pt (patient) smells strongly of alcohol". Mr Widera says he had six large drinks after the incident and before the ambulance arrived. Mr Reid says he observed Mr Widers with bloodshot eyes and unsteady on his feet. The reference to `domestic' could refer to the dispute between Mr Widera and Mr Reid. It would seem odd to refer to an unknown driver colliding with a pedestrian, Mr Widera's version, as a `domestic'.

14. It is common ground that Mr Widera was taken by ambulance to Calvary Hospital emergency department. There he was treated for abrasions. His broken ankle was not detected. He complained of pain the next day and attended at Canberra Hospital on 18 November where he complained of injury to his ankle. He was x-rayed and a fracture was detected. He underwent an open reduction and internal fixation of the left fibula, and in February 2000 further surgery was necessary to remove the metal work.

15. There was some cross-examination as to the meaning of the ambulance report of a "domestic". Mr Widera denied giving that history to the ambulance officer. At the time Ms Towne may also have been present. The hospital notes for Calvary and Canberra Hospitals were also before me as part of exhibit A. The Calvary notes take a history "Altercation with car driver. Car side swiped him on L side". There was no cross-examination on this passage, but I note that the history, which could only have come from the plaintiff, refers to an altercation, which is again more consistent with the defendant's version of events than the plaintiff's version of events.

16. The Canberra Hospital notes, which were also part of exhibit A, take a history, which again could only have come from the plaintiff, that he was "hit by a VW semi truck-speed 40-50 kph (driver known to him)". Again, there was no reference to this passage in cross-examination, but it is evidence before me, and it is entirely consistent with the defendant's version of events, that they were known to each other and that Mr Widera disliked Mr Reid because Mr Reid had formed a relationship with Mr Widera's former partner. It is equally entirely inconsistent with Mr Widera's consistent claim that he did not know who Mr Reid was.

17. It is for the plaintiff to prove a case on the balance of probabilities. On all of the evidence before me I am not satisfied, on the balance of probabilities, that the accident occurred in the circumstances described by Mr Widera. I do not accept that he did not know who Mr Reid was. This is hard to reconcile with his acknowledgment that after the incident Ms Towne left her premises and went to spend the night with Mr Reid. It is not consistent with the ambulance note of a `domestic' and the Calvary Hospital note of an `altercation'. It is impossible to reconcile with the hospital history taken by Canberra Hospital on 18 November 1997.

18. Neither Mr Widera nor Mr Reid were witnesses whose account I would fully accept. Mr Reid acknowledged that, in an interview to police on 25 November 1997 he gave a different version of events to the version he gave in evidence in that he said then that he pulled up and beeped the horn for Ms Towne to come out, and then drove off when Mr Widera came running out. He now says that he in fact stopped the engine and got out of the car and went to the door. His police statement is otherwise in general accord with his version at the hearing, in particular that he knew and was in fear of "Stan" (in the police version he says he is not sure of the surname), and that Stan ran to his vehicle as he was leaving and kicked it.

19. He was cross-examined on another inconsistency in that he said that after the impact Mr Widera was standing in the middle of the street, and then after the police asked how this was possible given his injuries, he said that maybe he was sitting in the street. He said that all that he could be sure of was that he was not lying prone on the road. I am not sure that this is necessarily an inconsistency, and although Mr Widera did sustain a fractured ankle in the incident, it was not detected at Calvary Hospital. It does not seem to me that Mr Reid was necessarily in error if he said he thought he saw Mr Widera standing after the incident.

20. On all of the evidence before me, which is somewhat unsatisfactory as both the plaintiff and the defendant could, it seems to me, have brought witnesses to back their versions, particularly as to the question of whether Mr Widera knew Mr Reid, I am not satisfied on the balance of probabilities that the accident occurred as described by Mr Widera, and I prefer the version of events of Mr Reid. On this version, Mr Widera recognised Mr Reid as the person having a relationship with his former defacto partner, and ran out of the house abusing him. Mr Reid got into his car and drove away as fast as he could, but Mr Widera, who I am satisfied was affected by alcohol and was angry with Mr Reid, ran onto the road to kick the side of Mr Reid's vehicle.

21. In these circumstances I am not satisfied that there was any breach of duty of care by Mr Reid when Mr Widera kicked his vehicle. Mr Reid was in genuine fear, and was entitled to seek to get away from Mr Widera. To the extent that he was thus less than vigilent in failing to avoid Mr Widera, it seems to me that Cusack v Stayt [2000] NSWCA 244, (2000) 31 MVR 517 is authority for excusing Mr Reid from any negligence in striking Mr Widera while seeking to get away from him. Abdallah v Newton (1998) 28 MVR 364 and Harper v Blake [1999] NSWCA 224, (1999) 29 MVR 389 also provide authority for the proposition that Mr Reid's conduct was reasonable, and Mr Widera can not complain at an injury he has sustained by running out onto the road in order to attempt to kick Mr Reid's motor vehicle.

22. I find for the defendant in this matter.

23. It is appropriate nevertheless to discuss the question of damages. If I had found that there was a breach of duty of care, it would seem to me that the plaintiff would be liable for general damages in respect of the frank injury to the plaintiff's ankle and his abrasions and damage to his teeth. There was no real issue before me as to the medical consequences of this injury. The medical position is well set out by Dr Gillespie, the orthopaedic surgeon who performed the operations. He said in his report August 2001:

"Mr Widera suffered a minor ankle fracture when he was hit by a car in late 1997. The fracture was treated satisfactorily by internal fixation, and has gone on to unite uneventfully. The hardware inserted to fix the fracture has been removed. He has some residual discomfort in the ankle region consistent with there having been an injury to the area. He is not at any particular risk of developing post traumatic osteoarthritis and the long term outlook for a left ankle function is satisfactory"

24. It was common ground that the plaintiff had sustained a number of earlier injuries in motor vehicle accidents leading to back problems, and had not worked for many years. Although a buffer type economic loss claim was particularised, no evidence was brought on economic loss.

25. Taking all of the medical and other evidence into account, and bearing in mind other decisions on leg injuries, I would have assessed general damages in the sum of $36,000. I would attribute two thirds of this to the past, generating interest of $2,114 for a total award of $38,114.

26. Out of pocket expenses were agreed in the sum of $5,878.38, which I would have awarded if I had found liability to be established. There is evidence that there is an outstanding need for some attention to his teeth at a cost estimated at $600, and I would have awarded this in respect of out of pocket expenses.

27. I would have made no award for economic loss, as no evidence was lead to support the claimed buffer loss. This would have amounted to a total award of $44,592.38.

28. There will be a judgment for the defendant. Unless the parties wish to be heard on the question, I would order that costs follow the event.

I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 12 April 2002

Counsel for the Plaintiff: Mr C. Everson

Solicitor for the Plaintiff: Butler & Company

Counsel for the Defendant: Mr M. A. McDonogh

Solicitor for the Defendant: Abbot Tout

Date of hearing: 13 & 14 March 2002

Date of judgment: 12 April 2002