Dresser v Hudson [2004] ACTSC 100 (9 September 2004)

Last Updated: 29 October 2004

LOUISE NICOLE DRESSER v BRET HUDSON [2004] ACTSC 100

(9 September 2004)

EX TEMPORE JUDGMENT

No. SC 756 of 2003

Judge: Crispin J

Supreme Court of the ACT

Date: 9 September 2004

IN THE SUPREME COURT OF THE )

) No. SC 756 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LOUISE NICOLE DRESSER

Plaintiff

AND: BRET HUDSON

Defendant

REASONS FOR JUDGMENT

Judge: Crispin J

Date: 9 September 2004

Place: Canberra

1. This is an action for personal injuries sustained in an accident on 22 July 2003 at Bruce in the Australian Capital Territory. There is some dispute as to the actual nature of the accident and neither the plaintiff nor the defendant were able to describe in evidence the precise mechanism by which the injuries were inflicted.

2. The plaintiff explained that she had formerly been married to the defendant and that they have three children. They separated in June 2002 and in September of that year she moved to a townhouse at 17/12 Crisp Circuit, Bruce, which is directly opposite a townhouse owned by her parents. Arrangements were made for the defendant to have access to the children at certain times each week.

3. On the day of the accident the defendant arrived to pick up the children at about 4.00 pm. There was an argument about the defendant's proposal to change access arrangements but following that argument the plaintiff left for work and the defendant apparently left with the children. The plaintiff said that she could recall a further argument at about 7.00 pm after the defendant returned to her home with the children. It is clear that the defendant then left and that she followed him out into the driveway, apparently to remonstrate with him. He got into his car which was parked outside her garage and she stood beside it while the argument continued.

4. The plaintiff said in evidence that she could remember the car starting to reverse and that she had been standing only about 10-15 centimetres away when that occurred. Her next recollection was of being in an ambulance. It was suggested to her in cross-examination that she had admitted having grabbed onto the side of the car and that she had later apologised to the defendant for what had occurred. It was also suggested that she had told him that she would have to go back on to anti-depressants. She denied these allegations and seemed to regard the last suggestion as ridiculous.

5. It is true that she had given differing versions as to how the accident occurred but I accept her evidence that she had no real recollection of it, that she had initially been dependent upon inferences drawn from discussions with her general practitioner and other matters such as the nature of the injuries, and that she had subsequently discarded the beliefs so formed in favour of hearsay accounts of others. In any event, she readily conceded that she did not know how the accident had occurred.

6. The plaintiff's mother, Mrs Dresser, gave evidence of hearing voices outside the townhouse and of seeing tail lights come on in the defendant's car. She said that her granddaughter, who is, of course, the daughter of the parties in this case, had said that her "daddy" was leaving. Mrs Dresser then looked out the window. She said that the defendant's car went backwards down the driveway extremely quickly and added that the speed of the vehicle had given her something of a fright and that her first thought had been that the children might have been injured had they been in the driveway at the time. She said that the defendant subsequently knocked on the door and asked her to call an ambulance. She ran out of the door and found the plaintiff lying unconscious on the driveway. The defendant's vehicle was parked on the opposite side of the driveway about 9 to 11 metres from where it had started. She said that it had been driven backwards and had swung round without stopping.

7. I formed the impression that Mrs Dresser was an honest witness and I accept her evidence, despite the evidence of the defendant who had claimed the blinds on Mrs Dresser's townhouse had been shut at the time. It may well be that the defendant observed that the blinds were shut when he arrived some 20 to 30 minutes earlier and before he had become involved in an argument with the plaintiff. However, it seems to me to be entirely plausible that the blinds were opened at the time he left, if only because the defendant's daughter wanted to see him go.

8. In any event, I accept Mrs Dresser's evidence that the blinds were open and I accept her evidence as to the description of the defendant's vehicle. However, as she candidly conceded, she had been unable to see her daughter until finding her unconscious on the driveway and her evidence casts no light at all on the plaintiff's conduct up to that point.

9. The defendant gave evidence that he had arrived to collect the children at about 4.00 pm. The plaintiff had initiated the resumption of an earlier argument. When he left with the children at that time she had followed him out and struck the side window of his car and then proceeded to kick the side of the vehicle, inflicting two dents.

10. He said that when he returned the children at about 7.15 pm Mrs Dresser took the children into her townhouse and he went into the plaintiff's home with her, where the argument was resumed.

11. He said that he reached the point of saying, "This isn't going anywhere," and went out to get into his car. He said that the plaintiff came out with him and stood outside the car, obviously intent upon continuing the argument.

12. He said that as soon as he started the engine the plaintiff shouted, "You're not going anywhere," and grabbed the "visor". By that I understand him to have meant the windshield above the window on the driver's door. He then started to reverse his vehicle but claimed that he had not been travelling quickly and that he had known that it was a delicate situation. The plaintiff jogged alongside the car yelling and repeating the statement, "You're not going anywhere." He suddenly saw her go down and imagined that she had tripped.

13. He said that the side mirror on the vehicle had not moved. He explained that he had driven off while she was holding onto the windshield because there had been earlier violent arguments which had dragged on for an extended period of time and that he had wanted to extricate himself from the situation.

14. There was disputed evidence as to conversations at the hospital but it is unnecessary to describe them in any detail because I have not found them of any assistance in the resolution of this matter.

15. It was, in my opinion, clearly negligent for the defendant to have attempted to reverse a vehicle as he did whilst another person was hanging onto a portion of the car.

16. I find that the plaintiff was hanging onto the windshield on the driver's door window at the time. To that extent I accept the defendant's evidence, confirmed as it is by the photograph showing that the windshield was damaged. In my opinion it is overwhelmingly likely that the accident occurred either because the plaintiff was simply dragged off her feet by the speed of the vehicle or because, whilst she was still trying to hold onto it, her foot caught on something and she was pulled forward off her balance by the vehicle.

17. As I have mentioned, it was, in my opinion, wholly dangerous to attempt to drive away even in the circumstances described by the defendant. When I add to that scenario the speed that was described by Mrs Dresser, I am driven to conclude that the conduct of the defendant was quite substantially dangerous. The fact that the defendant may have been distressed and anxious to get away from the situation did not excuse the dangerous manner of driving to which I have referred, though it may explain why he found it difficult to acknowledge the wrongfulness of his behaviour at the time.

18. However, the fact that he had driven in a dangerous manner does not justify a conclusion that the plaintiff had not also acted in a dangerous manner. It was plainly foolhardy to hang onto a portion of a vehicle which was reversing out the driveway.

19. Accordingly, whilst I find the allegation of negligence against the defendant has been established, I also find that the plaintiff was guilty of contributory negligence. The question is what apportionment is appropriate.

20. In circumstances of this kind, where a pedestrian is hanging onto a vehicle and the driver chooses to drive away, the driver must, in my opinion, accept the primary responsibility for what occurs. The conduct of the pedestrian may be foolish, but it is the driver who is in a position to control the acceleration and deceleration of the vehicle and to control its direction. Having regard to all of the circumstances revealed by the evidence I think it is appropriate to apportion liability on a two-thirds, one-third basis, with the defendant accepting two thirds of the responsibility for the accident.

21. The injuries which the plaintiff received were relatively minor, certainly much less serious than might have been the case in the circumstances. After the accident she was taken by ambulance to Calvary Hospital. She was discharged later that evening and at that stage had a sore right ankle, a sore left hand and a sore face. The next morning she felt worse. She had a headache and her ankle and one hand were both very sore. She saw Dr McPhail and was referred for X-rays. She saw Dr McPhail again on 28 July and was informed that she had suffered an undisplaced fracture of the left ankle. During the intervening period, on 25 July, she had a dizzy spell and began to vomit. She was taken to hospital but that appears to have been a momentary episode which did not reveal any underlying serious problem. In addition to the undisplaced fracture of her ankle she suffered cuts and bruising to her hands, bruising to her right elbow, right foot, right lower leg, the back of her right knee and her left eye. She also had a cut to the inside of her mouth and some soreness in the head. Fortunately the bruising subsided within a fortnight and she subsequently made a full recovery by October 2003.

22. There is a claim under the principles in Griffiths v Kerkemeyer which is admitted in the sum of $1,560.

23. Out-of-pocket expenses are admitted in the sum of $630.

24. I assess general damages in the sum of $15,000, all of which I apportion to the past.

25. I note that the majority of the pain and suffering was experienced within a short period after the accident and it is appropriate that the calculation of interest be altered to some extent to reflect that. I award the sum of $500.

26. That produces a total of $17,720 which I reduce by one third on account of contributory negligence.

27. I order that there be judgment for the plaintiff in the sum of $11,813.

(ARGUMENT AS TO COSTS THEN ENSUED.)

28. I am not prepared to order indemnity costs. In all the circumstances, and balancing the competing considerations including the Calderbank offer, I order that the defendant pay the plaintiff's costs of the action and that the costs of the hearing itself be paid at the full Supreme Court scale rather than at the Magistrates Court scale which would otherwise follow.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 30 September 2004

Counsel for the plaintiff: Mr Sainty

Solicitor for the plaintiff: Blumers

Counsel for the defendant: Mr Nolan

Solicitor for the defendant: Phillips Fox

Date of hearing: 9 September 2004

Date of judgment: 9 September 2004