Beyene v McAlwey - [2005] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BEYENE -v- McALWEY [2005] WADC 61

CORAM: GROVES DCJ

HEARD: 21 MARCH 2005

DELIVERED : 12 APRIL 2005

FILE NO/S: CIV 521 of 2002

BETWEEN: FISSEHA BEYENE
Plaintiff
AND
ROGER BURTON McALWEY
Defendant
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Third Party

Catchwords:

Tort - Motor vehicle accident - Whether passenger interfered with plaintiff who was driving - Credibility - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Action dismissed

Representation:

Counsel:

Plaintiff:     Mr K S Pratt
Defendant:     Mr J C Curthoys
Third Party  :     Mr J F O'Sullivan

Solicitors:

Plaintiff:     Separovic & Associates
Defendant:     Stables Scott
Third Party  :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Davies v Taylor [1974] AC 207

Case(s) also cited:

Franz v Allum & Anor (1996) 24 MVR 492
Hurst v Ninyett (1992) 16 MVR 367
R v Murray (1986) 4 MVR 331
State Government Insurance Commission (SA) v Sweeney (1989) 9 MVR 458

GROVES DCJ:

Introduction

The plaintiff was born on 10 June 1968 and is 36 years of age. At all material times he was a taxi driver by occupation.
On 30 January 2000 the plaintiff picked up the defendant as a fare at or near a taxi rank adjacent to the Hippee Club at Leederville. The defendant was the only passenger and he sat in the front passenger seat. He directed the plaintiff to drive him to Mosman Park.
Whilst travelling on Owston Street, Mosman Park the plaintiff alleges that the defendant assaulted him and took control of the steering wheel of the taxi causing it to crash into a light pole.
The plaintiff alleges that the crash was caused solely as a result of the defendant's negligence in that he:
"(i)recklessly interfered with the plaintiff's driving of the vehicle.
(ii)took control of the steering wheel whilst in the passenger seat."
As a consequence of the accident the plaintiff sustained injuries for which he claims damages. The defendant denies that he was negligent as alleged and denies also that the plaintiff suffered injury and loss and damages.
The defendant issued third party proceedings seeking an indemnity from the third party against any judgment given in favour of the plaintiff against the defendant pursuant to the provisions of the Motor Vehicle (Third Party Insurance) Act 1943. In turn the third party denied that it was liable to indemnify the defendant.
The action proceeded to trial on the issue of liability only. The key issue for consideration is as to the circumstances leading to the cause of the accident. Only the plaintiff and defendant were present and there is conflict as between their respective account of events. The only other evidence was that of a taped conversation which the plaintiff had with his taxi base immediately prior to the accident and that of a police officer who attended at the scene and spoke with both the plaintiff and the defendant. It is thus necessary that close consideration be given to the conflicting accounts.

The plaintiff's evidence

In the early hours of 30 January 2000 the plaintiff was driving Swan Taxi No 631. At about 5.00 am he pulled in towards the taxi stand adjacent to the Hippee Club at Leederville. He observed there were a few people at the taxi rank. Before he reached the rank however he observed the defendant on the roadway hailing him to stop. Whilst the taxi was slowly moving the defendant opened the front passenger door, got into the taxi and directed the plaintiff to take him to Mosman Park. Thus on the plaintiff's evidence the defendant effectively jumped the queue by high jacking the taxi before it reached the taxi rank.
The plaintiff proceeded to Thomas Street and thence on Stirling Highway westwards towards Claremont. On the way the defendant was asleep. When he woke he directed the plaintiff to turn left into Richardson Avenue, Claremont, which proceeds into the Esplanade which runs around the foreshore of Freshwater Bay at Peppermint Grove. Whilst travelling around the Esplanade the defendant requested the plaintiff to slow down. At Keanes Point where the Esplanade intersects Keane Street the defendant directed the plaintiff to stop the taxi. Upon enquiry the defendant's explanation was that he wanted to see the river. When the taxi stopped the defendant opened the passenger door and swung his legs out. He never physically left the taxi at this point. The plaintiff asked whether it was the end of the trip. There was some discussion as to the defendant paying the fare as the plaintiff was concerned that the defendant may decamp without paying. He said that the defendant became angry and was swearing and grabbed him by the arm saying "If you don't trust me get out with me". The plaintiff responded that if he had to stay he would stay with the taxi. The plaintiff described and defendant's conduct as being aggressive and abusive and that he was moving to hit him. The defendant did not alight from the taxi, put his legs back in and closed the door.
On the plaintiff's evidence there was no instruction as to the defendant's ultimate destination save that "…he didn't mention anything but Mosman Park from the beginning…" He went on to say:
"If you see the logic, a passenger telling you to Mosman Park…basically you follow the main road, and he was not under my guide as well so this is the road we follow. There wasn't any word for his destination or which street I should follow. There was not any name he mentioned, street or any direction I should follow. It's a sign. He showed me, stretched his hand and his finger 'follow' so there's no street shows me recognise Mosman Park, so we head on." (My emphasis)
Later in cross‑examination when it was put to him that the defendant asked the plaintiff to slow down at his house in Johnston Street the plaintiff said:
"But 'slow down' was, as in my statement, as he said, 'I will direct you head on to Mosman Park, and when we're closer I'll direct you,' and he said, 'come round to Johnston Street,' and when we were driving on the Esplanade he said, 'slow down. I want to look at the river.' " (My emphasis)
The plaintiff maintained that he did not travel on Johnston Street at any time. It is pertinent however that he did say there was mention of Johnston Street despite having earlier maintained that no street name was mentioned.
On the defendant's evidence his destination was to be 70 Johnston Street, Peppermint Grove which was his parents' home where he was then living. That address was in fact just on the other side of Manners Hill Park from where the plaintiff said he stopped his taxi, ie effectively just one block to the south.
The plaintiff backed out from where he had been stopped onto the Esplanade then turned right into Keane Street and at the first intersection left into Bayview Terrace and proceeded in a southerly direction around Bayview Terrace which runs into Owston Street, Mosman Park. As he reversed back from the stationary position onto the Esplanade the plaintiff, being concerned now for his safety sought assistance by activating the emergency button on his taxi computer which is linked back to the Swan Taxi base. That procedure is known as an M 99 call. In response the female operator called on the two‑way radio and there followed discussion between the plaintiff and the operator which was recorded on tape. The tape recording was tendered as an exhibit and reference to what was said will be made later in these Reasons.
Whilst travelling along Bayview Terrace the plaintiff said that the defendant moved in his seat "…as if to hit me." Later in Owston Street he said that the defendant was "…looking at me aggressively…he was not talking…" The plaintiff denied in cross‑examination that the defendant asked him to stop at all as he proceeded along Bayview Terrace and Owston Street. When asked "did he ask you to stop about 10 times?" he responded "No this wasn't 10 times. There wasn't any single time he asked me to stop." He was asked "Did he say to you eventually, 'Mate, this is it. If you don't stop I'll have to stop the cab for you'? to which the plaintiff responded "No. The radio doesn't say anything."
It was the plaintiff's evidence that as he was proceeding down Owston Street at approximately 55 kilometres per hour the defendant grabbed the automatic gear shift T‑bar, situated between the passenger and the driver's seat, with his right hand and moved it upwards and then down back into the 'drive' position. The defendant then grabbed the steering wheel with his right hand and pulled down hard on it. This caused the taxi to swerve to the left up onto the verge where the taxi collided with a light pole and came to a halt. The taxi suffered extensive damage to the left front side and front centre.
Immediately following the impact the defendant alighted from the taxi and ran down the side of the Mosman Park Golf Club which is on the eastern side of Owston Street. The plaintiff set off after him and a chase ensued. Some short time later police arrived and both the plaintiff and the defendant were spoken to by a police officer.
It was put to the plaintiff in cross‑examination that he only made the emergency M 99 call after the accident. He emphatically denied that. The response to activating the M 99 call is that police would be immediately contacted by the taxi base. From the recorded conversation it would seem that is what happened on this occasion. It was put to the plaintiff in cross‑examination that after having stopped at the jetty at the end of Keane Street that the defendant had directed him to proceed south on Lilla Street which intersects with Johnston Street in close proximity to where the defendant's parents lived. The plaintiff denied that such a request was made.
When the defendant grabbed the gear shift T‑bar it did not impede the progress of the car at all. The defendant grabbed the steering wheel only about six metres from the point of impact with the light pole. The plaintiff had his left hand on the wheel and tried to hold it straight but the defendant pulling down on it overpowered him. He tried braking and estimates that his speed was reduced to about 40 kilometres per hour when he went over the kerb from Keane Street to the point of the accident. He said that a couple of times he saw the defendant move in a threatening manner towards him. Travelling south on Owston Street he was proceeding at approximately 55 kilometres per hour. Despite the manner of the defendant he gave no thought to slowing down or stopping. He denied also that the defendant at any point asked him where he was going. The plaintiff did not know where he was going. He was already in Mosman Park. I find it improbable in those circumstances that the defendant would not have asked him where he was going or ask him to stop given that he was travelling further away from Johnston Street.

The tape recorded conversation with base operator

The microphone in the taxi which the plaintiff held in his right hand after activating the M 99 emergency has a button on it. When depressed the driver speaks and will be heard by the operator at base. When the button is released the driver will hear the base operator talking to him. If the button on the microphone was depressed continuously then the line to base would be "open" throughout. If that had been the case (as the plaintiff contended it was) any response from the base operator would not have been heard by the driver. Given that a conversation between the two ensued I do not accept as the plaintiff contended that the line was "open" all the time. Thus things could have been said as between the plaintiff and the defendant in the taxi which would not have been heard by the base operator or recorded.
The recorded conversation is not completely clear, there is noise and static which renders parts of what was said inaudible. After listening to the tape recording very closely on a number of occasions the following is a transcript of the conversation:
"Channel Operator:         631.
Beyene:  Just got err M 99 I'm along err…
Channel Operator:          631.
Beyene:  …(inaudible)…hello base.
Channel Operator:          631 carry on where are you?
Beyene:  I am at the memorial in Mosman Park.
Channel Operator:          You're in Mosman Park…whereabouts?
Beyene:  Stirling Highway.
Channel Operator:          Stirling Highway..Mosman..whereabouts      exactly?
Beyene:I am in the park…just got to the park…heading to Stirling Highway.
Channel Operator:          Are you actually on Stirling Highway or        not?
Beyene:Stirling Highway…I'm…I'll tell you just in a second.
Channel Operator:          Roger.
Beyene:Mosman Park…just on the ocean side Bayview…towards Stirling Highway.
Channel Operator:          So you are in Claremont are you?
Beyene:Yes, in Claremont…sorry in Claremont.
Channel Operator:          Oh OK, and you are going from Club Bayview down Stirling Highway are you? Is that right 631?
Beyene:That's right.
Channel Operator:          Roger.
Beyene:Right.
Channel Operator:          Okay.
Beyene:Roger…(inaudible).
(about 10 sec silence)
Male:Stop the fuckin' car or I'll fuckin' have…Ok?
Beyene:…(inaudible)…pay…(inaudible)…hello base.
Channel Operator:          Yes…631?
Beyene:He's getting me to get an accident.
Channel Operator:          631 we'll get assistance to you.
Beyene:Oh yes please…police…that's good.
Channel Operator:          Police will be on the way.
Beyene:…(inaudible)…
Channel Operator:          Are you stationary or you still moving 631?
Female:…the lady speaking about the police, who is it please.
Female:The police was already called by the neighbour too who heard the accident.
Channel Operator:          Accident where?
Female:In 15 Owston Street in Mosman Park…that's where we are at the…(inaudible).
Channel Operator:          With 631?
Female:Yes 631 and the driver is err we don't know…he's running around. He's in shock.
Channel Operator:          Roger…thank you."
(Constable Litherland arrived at the scene and took over).
As is apparent from that conversation there was some degree of confusion on the part of the plaintiff. He was not on Stirling Highway at that time or in Claremont and nor was he going from Club Bayview (which is a nightclub in Claremont). It is of significance also that he was asked to stop the vehicle.

The defendant's evidence

The defendant is 37 years of age and a truck driver by occupation. On the evening in question he took the train from Cottesloe into the city and proceeded to the Leederville Hotel where he arrived about 11.00 pm. There he had about four middies of beer, left about 12.15 am and went to the Hippee Club. There he estimates that he would have consumed "…not more than a dozen…" cans of full strength beer. He acknowledged that when he left he was drunk, not in a fit condition to drive a car, but not paralytic. On his estimate he left the Club at about 3.00 am and got on the line of people waiting for a taxi. There were about 20 people on the line. He had to wait about half an hour for a cab. He was at the front of the line when the plaintiff arrived at the taxi rank. The defendant denied that he had jumped the queue in the way that the plaintiff had described in his evidence. He directed the plaintiff to go to Mosman Park and said that he would direct him from there. He denied that he slept at all en route.
Proceeding down Stirling Highway at Claremont he directed the plaintiff left into Richardson Avenue which runs into the Esplanade. At the intersection of the Esplanade with Keane Street he directed the plaintiff round into Lilla Street and right onto Johnston Street and indicated which house to stop at. The plaintiff didn't stop. The defendant asked why he hadn't stopped to which the plaintiff responded "…this is not your place…" and kept driving. In cross‑examination the response was "I'm the cab driver, I know where I'll take you.". The plaintiff then proceeded up Johnston Street and left into Bayview Terrace and around and down to Owston Street, Mosman Park.
It was the defendant's evidence that he said or demanded on at least 10 occasions that the plaintiff stop the taxi. The driver's response was that he would "…take me where I was living…" Following that the defendant said the plaintiff was "…just sort of ranting and raving. I couldn't understand, you know, what he was saying to me".
The defendant denied emphatically that the taxi had stopped at the end of Keane Street and that he had attempted to alight there as described by the plaintiff in his evidence.
The defendant did not know where the plaintiff was heading, the plaintiff would not stop as he was requested to and the defendant became angry. It was his evidence that as they were proceeding down Owston Street he said to the driver "if you don't stop the car now I'll stop it for you" whereupon he grabbed the gear shift T‑bar and put the vehicle in neutral. He denied emphatically touching the steering wheel. The plaintiff alone caused the vehicle to swerve to the left up on to the kerb and into the light pole. The defendant said that he had grabbed the T‑bar and put the vehicle into neutral because he was concerned for his own safety.
The defendant alighted the vehicle amid shouting between he and the plaintiff. The defendant walked off quickly down the road and went to two houses, knocking on the doors to try and get assistance to call police. His concern was to stay away from the plaintiff who was following him until police arrived. Police subsequently did arrive. His best recollection of his discussion with the police officer was that he was asked what had happened and he recounted that the taxi driver would not stop where he wanted to stop and that he got angry. To his recollection the officer did not put to him the plaintiff's assertion that he had grabbed the steering wheel thereby causing the taxi to run off the road and collide with the light pole.
In cross‑examination the defendant was pressed regarding his instructions to the plaintiff. His evidence was as follows:
"When you got into the cab, you didn't give a specific address did you?‑‑‑No, I never do that.
In fact you never gave Mr Beyene a specific address at any time. Do you agree with that?‑‑‑Well, I said, 'go to Mosman Park and I'll show you the way.'
Do you agree that you didn't give a street name to him at any stage – mention a street name to him?‑‑‑Well, I said 'Johnston Street', but I didn't say the number.
When did you do that?‑‑‑When I was back at – when we were going down Lilla Street, I think it was – Lilla Street – and I said, 'turn right. This is Johnston Street. I just live, you know, here – Johnston Street.' "
And later in cross‑examination there was the following exchange:
"Where was the taxi when you first mentioned Johnston Street to him at all?‑‑‑In Ula Street, or whatever it is called – Ula. (sic Lilla).
What – did you tell him to turn right, did you?‑‑‑I said, 'turn right. This is Johnston Street this is where I live.' He said, 'No. You don't live here.' I went, 'what?'.
Did he say anything else to you along the way which would indicate where he might be taking you?‑‑‑I had no idea. I said, 'Mate, why are you not stopping,' you know. He kept on repeating himself. I don't know how many times but, 'I'm the cab driver, I know where I'm taking you.' I mean – 'Ok, whatever,' and I just said, 'Well' – and then once I got up to Owston Street I said, 'Well, if you don't stop the car, I'll stop it for you.' "
In cross‑examination it was put to the defendant that his solicitors in a letter dated 23 November 2000 had written to the effect that he had grabbed and swung the steering wheel of the taxi immediately prior to the collision. The defendant denied that he had ever instructed his solicitors to that effect. He had not previously seen the letter. That issue was not taken any further and given the defendant's response no weight at all can be attached to what was purportedly written by his solicitors. It can constitute no evidence adverse to the defendant. The letter was not tendered as an exhibit.

Evidence of Senior Constable Litherland

At the time Senior Constable Litherland was attached to the Cottesloe Traffic Office. At about 5.20‑5.30 am on 30 January 2000 he responded to a call to attend in the Mosman Park/Cottesloe area. In Owston Street, Mosman Park, he was directed by residents to where the plaintiff was and where the defendant was subsequently located.
He spoke to the plaintiff who identified himself as the driver of the taxi. It was his evidence that:
"He did advise us that he was having trouble with a passenger in the car who had continually kept trying to stop and get out. At one stage I believe may be a passenger door was opened and then it was alleged that Mr McAlwey had grabbed the steering wheel and pulled the car to the left kerb which is where I assume it mounted the kerb and hit the pole."
The plaintiff appeared fine and his demeanour was cooperative.
He located the defendant hiding under a tree or bushes and when called upon the defendant came out whereupon he tried to have a conversation with him. He said it was difficult to have any coherent conversation as it appeared to him that the defendant was heavily intoxicated. When he asked the defendant if he had interfered with the driver the defendant made no admissions in reference to doing that. He indicated however that he was upset or angry that the driver would not stop where he had wanted him to do so. On this issue his further evidence was:
"Just lastly, you say Mr McAlwey didn't make any admissions concerning any interference with the steering wheel?‑‑‑Not that I can recall, Sir.
Did you ask him any such question?‑‑‑I would have asked him, based on the information I received from the driver of the taxi. I don't recall asking the specific question, but given experience I would have been – likely question.
Do you know whether he responded in any way, 'that's not true,' or‑‑‑? No, I don't recall a response. The only response I do recall is the fact that, 'Well, the guy wouldn't stop.' 'I kept telling him to stop but he wouldn't pull over.' "
Senior Constable Litherland took the defendant home to 70 Johnston Street, Peppermint Grove because as he said the defendant was quite drunk. He formed the opinion that the defendant was heavily intoxicated by reason that he was slurring his speech and he was unsteady on his feet. When asked a number of times his details the answers given were vague as though he (the defendant) was forgetting that the police officer was there, the defendant was dishevelled and his eyes were red and teary. When being conveyed home in the police car Senior Constable Litherland was aware of a very strong smell of alcohol on the defendant.

The onus and burden of proof

It is trite to say that the onus rests upon the plaintiff to prove his case. That is the plaintiff carries the burden of satisfying the Court on the balance of probabilities that the accident was caused in the manner which he alleges.
When speaking of a degree of cogency which evidence must reach in order that it may discharge the legal burden in a civil case Denning J in Davies v Taylor [1974] AC 207 at 219 said:
"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."

Credibility of the plaintiff and the defendant

Of course, the steering wheel issue is not the only one where there is a conflict of evidence. There is conflict as to what time and the circumstances in which the defendant got into the taxi, whether or not the defendant went to sleep en route, whether the taxi stopped at the end of Keane Street, whether or not the taxi travelled in Johnston Street at all, whether or not the defendant indicated that he lived in Johnston Street and indicated where he wanted to get out and whether or not the defendant asked the plaintiff a number of times to stop the vehicle before the collision with the light pole.
The defendant's state of intoxication is of course a relevant consideration so far as his credibility is concerned. On Senior Constable Litherland's assessment he was heavily intoxicated. I have no reason not to accept that assessment of the defendant's sobriety. It is well recognised that alcohol affects people not only in the way they may act whilst intoxicated but also in their recollection of events subsequently. Whilst he acknowledged that he was not in any condition to drive a motor vehicle the defendant nevertheless maintained under cross‑examination that he had a pretty good memory of that evening but "…not as much as I would if I was stone cold sober I suppose…". On the evidence of both of them the defendant was sufficiently alert as they proceeded along Stirling Highway to direct the plaintiff to turn left into Richardson Avenue. Thus, he well knew where he was heading to get home to Johnston Street by the most direct route.
I accept the police officer's evidence that it was difficult to have a coherent conversation with the defendant after the accident. I am not able to conclude however that that was only because of the defendant's level of intoxication. On the defendant's evidence he had been concerned for his safety because the plaintiff would not stop the taxi. He had experienced the shock of the impact of the taxi with the light pole immediately in front of him and on the left side of the vehicle. When he had walked off quickly down the road the plaintiff had followed on after him. Any one of those factors may well also have impacted upon his demeanour when spoken to by police.
The police officer's evidence as to whether or not he put to the defendant the plaintiff's assertion that he had interfered with the steering wheel was by no means emphatic. He could not recall asking the specific question. Relying on his experience he believed that it was likely that he had asked the question. That evidence as uncertain and vague as it is is of doubtful worth insofar as assessing the defendant's credibility is concerned. Even so, accepting the police officer's evidence that the defendant "…never made any admissions or any indication as to…what happened" it is not open to me to conclude, by inference or otherwise that implicit in that is an admission by the defendant that he did interfere with the steering wheel. That is, by not making any admission or denial cannot be taken to mean that the defendant did in fact place his right hand on the steering wheel."
Looked at in another light it might conversely be inferred that the defendant despite his intoxicated state nevertheless had sufficient presence of mind not to make any admissions against interest. In those circumstances I am not able to conclude that the defendant was so intoxicated as to not have any recollection of what he did or said on the evening and whilst in the taxi. That is, I am not able to discount or disregard his evidence or find that his evidence is so unreliable that it should not be accepted at all.
A most telling point so far as their respective credibility is concerned emanates from a close listening to the tape recorded conversation between the plaintiff and the base controller. On the one hand it was the defendant's evidence that in Owston Street when he was getting angry he said to the plaintiff "Well, if you don't stop the car I'll stop it for you." The plaintiff denied that the defendant had told him to stop the vehicle whilst he was proceeding along Bayview Terrace or Owston Street. Quite clearly the plaintiff's evidence is contradicted in the tape recording. As difficult as it is to discern it is nevertheless clearly audible that a voice not being that of the plaintiff is heard to say "stop the fuckin' car or I'll fuckin'…ok" That was only shortly prior to the point in time when the plaintiff says that the accident occurred. That telling piece of evidence is consistent with the defendant's evidence that he did request the plaintiff to stop. I find his evidence in that respect to be wholly credible.
I pause here to point out that in what purported to be a typed transcript of the recorded conversation the words "stop the fuckin' car or I'll fuckin'…ok" were not transcribed. Clearly it is a voice other than the plaintiff. The tape recording was produced and tendered as an exhibit through the plaintiff. The transcript was provided as an aid and was not received as an exhibit. It is of course only secondary to the actual tape recording itself. I do not for one moment suggest that there was anything untoward in the fact that the words mentioned were not transcribed. I strongly make the point that in coming to my conclusion I have not inferred anything untoward against the plaintiff insofar as the shortcoming of the transcript is concerned. It is apparent from cross‑examination of the plaintiff and from the lack of any reference to those words by defence counsel in his address that he and presumably the defendant had not listened closely to the tape either. That suggests to me that the defendant's evidence as to having requested that the plaintiff stop the vehicle was independent of what was on the tape. That confirms to me that his evidence in that respect is entirely credible.
Furthermore, as identified earlier in these reasons, the plaintiff contradicted himself as to whether or not the defendant mentioned Johnston Street. It was also his evidence that the defendant had not asked him on a number of occasions after leaving Keane Street to stop. On the other hand Senior Constable Litherland said that the plaintiff had told him that the defendant "…had continually kept trying to stop and get out." If that were so and if the plaintiff was concerned for his safety it defies logic that he would not stop to let the defendant out. He has contradicted himself in this respect also. I find that the plaintiff's evidence, where contradicted in material respects, is unreliable.

The allegation that the defendant "…assaulted the plaintiff…"

In his statement of claim the plaintiff alleges in par 3:
"Whilst travelling on Owston Street in Mosman Park the defendant assaulted the plaintiff and took control of the steering wheel, causing the vehicle to crash into a light pole."
On the plaintiff's evidence, which was denied by the defendant, the defendant had grabbed the plaintiff by the arm whilst the taxi was stationary by the water's edge at the end of Keane Street. That was the only occasion on the plaintiff's evidence that the defendant at any time physically touched him. Beyond that as much as happened was that the plaintiff saw the defendant twice "…to act threateningly…". He described one occasion on Bayview Terrace when the defendant "…moved in his seat as if to hit me…". The manner in which the defendant moved or what part of his body he may have moved or why it was that the plaintiff thought he might be hit was not described. The defendant acknowledged that he got angry with the plaintiff. Actual physical contact is not necessary to constitute an assault. A person who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another is said to assault that other. Words alone however cannot constitute an assault. Whether or not the manner in which the defendant acted, having regard to the plaintiff's evidence alone, was "threatening" I am not able to conclude given the lack of any detail.

The allegation that the defendant "…took control of the steering wheel…"

The defendant acknowledges that he became angry with the plaintiff when he wouldn't stop the vehicle. He admits that he took the T‑bar and placed the vehicle into neutral. On the plaintiff's evidence he moved the T‑bar upwards and then down back into drive. Whatever it was that did not amount to the defendant taking control of the vehicle. Beyond that there is conflict as to whether or not the defendant took hold of the steering wheel. The plaintiff says that the defendant after having moved the T‑bar then with his right hand grabbed the steering wheel and pulled it down causing the vehicle to swerve to the left. The defendant denies that he touched the steering wheel at all.
Given the conflict of evidence and my finding as to the credibility of the plaintiff I am not able to conclude that the accident happened in the manner alleged by him. That is, I am not satisfied to the requisite standard, ie on the balance of probabilities, that the defendant either interfered with the plaintiff's driving of the vehicle or took control of the steering wheel causing the vehicle to crash.

Conclusion

In the circumstances I am not satisfied to the requisite standard that the accident was caused by or was in any way contributed to as a result of the defendant's conduct.
Accordingly, the plaintiff's claim must be dismissed as will be the third party proceedings.