Durnin v Noori - [2009] WADC 190

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DURNIN -v- NOORI [2009] WADC 190

CORAM: O'NEAL DCJ

HEARD: 30 NOVEMBER & 1 DECEMBER 2009

DELIVERED : 11 DECEMBER 2009

FILE NO/S: CIV 3168 of 2008

BETWEEN: ANDREW JAMES DURNIN
Plaintiff
AND
AMJAD MOHAMED NOORI
Defendant

Catchwords:

Negligence - Breach of duty of care - Contributory negligence - Turns on own facts

Legislation:

Civil Liability Act 2002, s 5L

Result:

Judgment for the plaintiff

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Kott Gunning
Defendant: B C Sierakowski

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

Nil

O'NEAL DCJ:

Introduction

In this action the plaintiff claims damages for personal injury.
On a Saturday night in May 2006 the plaintiff and his friend, Daniel Howes were passengers in a taxi driven by the defendant. When the taxi arrived at its destination, 3 Charlwood Way in Morley, the plaintiff got out. When he did so his foot became caught under the left rear tyre.
The plaintiff alleges that the defendant was negligent in that, among other things, the defendant stopped the taxi and then started off again without checking to see that the plaintiff had not "commenced to alight from the taxi driven by the defendant".
The defendant alleges that the plaintiff was so affected by alcohol that it impaired his judgment. The defendant's case is that, without warning, and while the taxi was still moving, the plaintiff opened the rear door of the taxi and began to get out.
The plaintiff fell on his back to the ground over a kerb, while the left rear tyre of the taxi held his foot. The plaintiff suffered significant personal injuries. There was a 2 x 4 cm "de‑gloving" of an area over his left ankle. In other words, a portion of tissue of that size was peeled from the ankle to the bone. There was a laceration to the plaintiff's left heel, a rupture of the ligaments of his left knee and injury and bruising to his left groin as well as multiple grazes. As might be anticipated, the plaintiff's injuries were particularly painful and required medical treatment, both in the casualty ward of Sir Charles Gardiner on the night of the injury and subsequently. In this case however, the parties have agreed the quantum of damages. The only issue for me to determine is liability.

Issues

On behalf of the defendant it was accepted that if the defendant had stopped his taxi and then subsequently began to move off in the manner that the plaintiff alleged that would be a breach of duty on the part of the defendant. In my view, given the potential magnitude of the harm that could be caused to a passenger and the ease with which that harm could be avoided, that concession was properly made. The defendant says, however, that the accident was caused either wholly or in part as a result of the plaintiff's negligence. The defendant says that the plaintiff stepped from a moving taxi and that intoxication was likely the cause for it. In the course of submissions the defendant also invoked the provisions of s 5L of the Civil Liability Act 2002, which I will refer to later, in the event that it was found that the defendant had breached a duty owed to the plaintiff.
As a result of the agreement between the parties with respect to damages and the concessions that were made by each side in the course of argument, the questions that remain for me to answer are as follows:
1.Did the taxi driven by the defendant stop before the plaintiff stepped out or did the plaintiff step out of the taxi while it was still in motion?
2.If the defendant breached a duty of care owed to the plaintiff, am I satisfied that the plaintiff's intoxication did not contribute in any way to the cause of the harm that he suffered?
3.If I am not so satisfied, how should liability be apportioned between plaintiff and defendant?
The resolution of the central issue here requires an assessment of the credibility of the three principle witnesses: the plaintiff, the defendant and the plaintiff's friend Daniel Howes.

Background

Many of the background facts leading up to the point of the accident were not in issue or not significantly in issue between the parties.
Daniel Howes invited the plaintiff to a football game at Subiaco Oval on 20 May 2006. The plaintiff had been his friend for some years. Howes received the tickets from his employer because there was a corporate function at the game. The two men arrived at the game separately around 12.30 pm. They were there for a lunch prior to the game.
They were together for much of the day, but they also separated to mingle with some of the other guests invited to the corporate function. For Howes in particular it was an opportunity for networking as well as socialising with other friends. It is undisputed that between 12.30 pm and 5.00 to 5.30 pm, the two men each consumed a number of alcoholic beverages.
When they left Subiaco Oval after the game, they walked to JB O'Reilly's Pub on Cambridge Street. There they had some Guinness Stout. Some mutual friends were having a housewarming that evening. The party was in Morley. The partners of both men were already at the party expecting them to arrive. At about 7 o'clock the two men left the pub, walked out into Cambridge Street and hailed a taxi from the side of the road. The defendant was the driver of that taxi.
The plaintiff and Howes knew the party was in Morley but they did not know the address. They directed the defendant to drive towards Morley and as they did so, Daniel Howes called his wife Kym to ask for the exact address of the party. Three calls in all were made from Daniel Howes' telephone to his wife. Various details were clarified. The last call came just a minute or two prior to the accident.
Howes had previously received directions to turn down a certain street to get into Charlwood but when the taxi arrived at that point, they could not turn because the way was blocked by a traffic island. That prompted the final telephone call and some further instructions.
They managed to turn right (east) off of Wellington Street and shortly afterwards right again (south) down Charlwood. As they drove up Charlwood Way the taxi slowed to about 5 kilometres per hour, a moderate walking pace, as they looked to identify the house where the party was taking place. As they drove south on Charlwood, there were cars parked down the whole right‑hand side of the road. Charlwood Way is a very narrow road. One of the police officers who investigated the accident gave the width of the road as 6 metres and there was no reason to doubt that. As Senior Constable Pickering said, and as the photos tendered as Exhibit 1 show, it would not be possible for a vehicle to travel up the middle of the street if there were cars parked on opposite sides of the road. A very small car might manage it with difficulty.
The defendant accepted that Charlwood Way on this night was "cluttered with cars". He described the lighting on this narrow road as "not a good light … poor lighting – you can't see clear …".
There was an issue as to whether the plaintiff dozed off at some point on the trip from Cambridge Street to Morley. Otherwise, the facts that I have so far described are not particularly in dispute and I find that they are the facts that led up to the real controversy, the manner of the plaintiff's accident.

The accident

In his evidence, the plaintiff described the events of the day at the Subiaco Oval, and later at JB O'Reilly's Pub and the trip in the taxi, with a reasonable degree of detail. His account was coherent and consistent. Some of the details emerged spontaneously, that is, responsively and without any hesitation, in the course of cross-examination. He said that he was awake for the whole trip in the taxi and described the route taken and the series of telephone calls made by Howes. He said that the third call was made not long before the accident. He said:
"We were told to go through the lights onto Camboon, turn first right. Now, we couldn't turn right because there was an island, so Daniel rang and asked 'we can't turn right. Where do we go from here?' So we had to turn right at the next street, then come back. So we went past the street, basically and the house and had to come back a little bit but that would have been only a couple of minutes before the accident."
He said that the last telephone call ended by Howes saying "We'll see you soon … we're just around the corner, we'll be there soon" or words to that effect.
The plaintiff said that as they drove up the street there were a lot of cars on one side of the street and they could not quite see the house number. He said that eventually they said to the driver "Just pull over here mate. This will do us", and the driver pulled over to the side. The plaintiff said that when the driver pulled over, the interior light was turned on. The car had stopped. He undid his seatbelt and opened the rear door. He said:
"I went to get out and as I placed my foot on the ground, the rear wheel has run over my foot and trapped it against the curb and I was dragged a little way along the curb … I was screaming in a lot of pain."
The plaintiff's evidence was that his left foot went on the roadway and his right foot then went on the grass verge. He said that his foot had been on the road for a second or two when the tyre went over it and he then fell onto the grass with his foot pinned under the left rear tyre. The plaintiff denied that when he put his foot onto the road it slid under the rear left tyre. Of course, had the taxi been moving at any speed that is what one would have expected.
In cross-examination the plaintiff agreed that to get out of the taxi it was necessary for him to swivel around and put his left foot out of the car. He said that he got out of the taxi normally. There was, he said, no rush. In his examination‑in‑chief the plaintiff said that the taxi was stopped for about 10 to 15 seconds before he got out. In cross-examination he said that it took him about 5 to 10 seconds to get out of the taxi. I do not accept the suggestion made in cross-examination that there was some inherent contradiction between those two circumstances.
The plaintiff denied that he had stepped from the vehicle while it was still moving.
The defendant recalled that after he picked up the defendant and Howes, on the way they were happy, talking, joking, having fun. He said that at some stage about half way he remembered looking at the plaintiff who was sitting in the back left-hand seat and observed that he was asleep. The defendant volunteered in the course of examination-in-chief that he mentioned that to Howes in the front seat and Howes told him "It's fine - as soon as we get there I'm going to wake him up and get him out".
In the plaintiff's evidence-in-chief he said that he was alert and awake for the duration of the taxi ride. His cross-examination on that point went no further than a question as to whether he had "any recollection during the course of the trip of dozing off in the taxi" to which he answered "No, I didn't". The claimed conversation about the plaintiff being asleep was not put to Howes in cross‑examination. Nor was it suggested to Howes that the plaintiff had been asleep in the taxi. In the course of the defendant's cross‑examination it was effectively put to the defendant that the conversation with Howes was a recent invention. The defendant denied that but there was no evidence that on any prior occasion he had mentioned such a conversation. I am not prepared to accept the evidence of the defendant on this point. It has an air of justification about it although in my view, it suggests at most a greater rather than a lesser degree of intoxication. If, however, the plaintiff only stepped out of the taxi once it was stopped and the dome light was turned on it is difficult to see how it might assist the defendant if he had previously observed the plaintiff to be asleep. If he assumed that the plaintiff was asleep but did not turn his head to check before he put the taxi in motion again, there would still in my view be a breach of duty.
The defendant described turning down Charlwood Way. He said:
"I travelled south and I reduced my speed to about 5 kilometre – the front seat passenger say to me 'that is the house, that' – there was a party, there was cars occupying the half – the whole left – right-hand side. And I realised there was – the driveway also was full of cars."
I understood from the answer that the defendant misspoke himself in initially referring to the left-hand side of the road. He immediately corrected that error and the evidence of all other witnesses is that the cars were parked on what would have appeared to the defendant as the right‑hand side of the road.
The defendant said that the driveway of the residence that he was supposed to get into was the one that was full of cars. He went on to say:
"I indicated him that, you know it's not possible for me to get into that driveway, plus there is traffic, I see a headlight, another car coming from the other side. And especially suggested he – want to use the EFTPOS which CabCharge gonna take a couple of minutes. So he indicate to me he can – I can drop them in the opposite, the neighbour's driveway and I look, it was clear, there was no cars, and enough space for me to pull. And as I was about do that I heard scream and I stopped the car immediately. I realise the backseat passenger has woken up and attempted to get out the cab while I was still driving. Immediately the front seat passenger got out of the cab and I went to help his mate … then he asked me to move the car backwards and I did just a little bit to release his pants, I thought his pants was caught under the tyre."
The plaintiff and Howes said it was the plaintiff's foot that was trapped and I so find.
Both the plaintiff and the defendant were asked to mark up copies of photographs to show where the taxi was when the accident occurred. They are respectively Exhibit 2, photo 3 and Exhibit 1, photo 3. In all of the circumstances there is surprisingly little difference between them. The plaintiff's diagram has the taxi basically on the curb, which is perhaps more indicative of his drafting skills than his recollection, given his evidence that his left foot was in fact on the roadway. The defendant's diagram shows the taxi pulled over to the left side of the road but about 30 centimetres off the curb. The defendant's diagram shows the front of the taxi slightly further advanced into the driveway of the house across from number 3 Charlwood Way but still quite parallel to the road. The plaintiff's sketch also shows the initial position of the taxi as parallel to the road but slightly further back from the driveway.
The third occupant of the taxi was of course the plaintiff's friend, Daniel Howes. Howes gave evidence about the events of the day and the taxi ride from Cambridge Street to Morley. He agreed in cross‑examination that as the taxi drove up Charlwood Way and approached number 3 Charlwood Way it was travelling fairly slowly at about 5 kilometres per hour. Daniel Howes said that after he said to the taxi driver "This is fine mate" and the taxi "pulled up" he reached to get his wallet to pay for the taxi. He described where the taxi "pulled up" as being "to the left of the road" and he said that the defendant had:
" … started to pull slightly into or had pulled into the driveway … I can't be 100% certain but I believe sort of the – the – the – at least the nose of the well, at least the nose and the front part of the taxi had – had pulled in."
While he expressed doubt as to his recollection, he also sketched the position of the taxi on a copy of a photograph provided to him (Exhibit 4). His recollection of the location of the taxi when the accident occurred is considerably at odds with that of the plaintiff and defendant and like much of his evidence I am not prepared to accept it, unless it is supported by other credible evidence.

The charge card

Howes' wallet was in his back pocket. He had a corporate credit card that he was going to use to pay for the trip. He said he took the card out of his wallet to pay the taxi driver. In his evidence-in-chief he said:
"I couldn't say for certain exactly whether I'd already handed the card to the taxi driver but I certainly had it in my hand ready to pay – that the next thing I knew I heard Andrew screaming. It was at that point I got out of the taxi …"
It was at that point he said that he observed his friend in a lot of pain with his friend "sort of wedged under the wheel of the taxi".
There was much examination and cross-examination of a number of witnesses as to whether the card that Howes was preparing to use was a CabCharge card or a credit card, as well as questions about precisely when, where and by whom the card was later found. In my view, whether it was a CabCharge or a credit card is not particularly significant, although there would be no reason for Howes to be mistaken or untruthful about the kind of card he had and wished to use.
Mr Howes himself was unable to say whether he had actually handed his card over to the driver before the accident. Ultimately he returned to the taxi before it left and used the card to pay the driver. His wife, Kym Howes, said that towards the end of the incident at the roadside, a police officer asked her husband if he had finalised the fare and her husband said he did not have his card. She said that she saw Daniel Howes go over to the taxi to pay and the card was already in there.
The defendant said that towards the end of the incident, after the defendant had given his report to the police, Howes said that he had lost his charge card. The two of them went back to the taxi and the defendant said that he found the charge card under the front seat in the taxi. Cross‑examined about precisely where the card was found the defendant said:
"Because this is the dash, when you put the CabCharge there, it's gonna fall off either side. So it could be his seat or my seat … when you put the CabCharge there and then you run for other reason and then somebody touched it, whatever happens, then fall off."
I am satisfied that Howes had produced his card and that either he or the defendant had placed the card on the dash of the taxi from where it later fell to the floor.

The plaintiff's level of intoxication

It was submitted on behalf of the defendant that I should conclude the plaintiff had knowingly given false evidence with respect to the amount of alcohol that he had consumed, his level of intoxication, and the circumstances of the accident. I do not accept the submission made on behalf of the defendant that I should conclude that the plaintiff was consciously gilding the lily and, for example, knowingly minimising the amount of alcohol or his degree of intoxication that he had consumed on the night. In my view, an objective examination of his evidence does not lead to that conclusion. To give just one example, while his evidence was that he had drunk mid-strength beer at the football game, in cross‑examination he allowed the possibility as to being mistaken about that.
It is of course necessary that I consider whether there were any particular factors that might affect the reliability of either plaintiff or defendant as a witness. So far as the plaintiff is concerned, there is a particular reason to do that given his admitted intoxication. It might reasonably be anticipated that any significant degree of intoxication would affect both a person's ability to observe events and to recall them.
When the ambulance arrived, the ambulance attendant dealt with the plaintiff while the driver went off to try and get information from other people. The plaintiff told the ambulance attendant, Kingsley Ford, that he had had 10 beers in the course of the afternoon. As the plaintiff said in cross‑examination "I thought they need to know how much you've had to drink in case you go into surgery". In his evidence Mr Ford said the plaintiff appeared to have had a reasonable amount of alcohol although he did not go into detail as to any particular symptoms he observed apart from the odour of alcoholic beverages.

The patient care record completed by Mr Ford on the evening went into evidence as Exhibit 8. Mr Ford took a history from the plaintiff. The history records that the plaintiff was alert and oriented. There was a note "smells ETAH", that is, that he smelled of ethanol. In cross‑examination Mr Ford said that it was also his practice to record strong smells of ethanol by adding one, two or three plus signs. Obviously the stronger the smell of alcohol the more plus signs. The patient care record records the plaintiff's description as to how the accident occurred and a number of personal details about him including his next of kin and their address, their contact telephone number, the fact that the plaintiff suffered from asthma but was not taking any medication, and that he had an allergy to bees.
Mr Ford gave evidence of some banter that took place between the plaintiff and some of his cricketing friends from the housewarming party who had gathered around him. The friends were apparently teasing the plaintiff about the circumstances of his accident and its similarity to an accident involving a well‑known cricket player. The plaintiff was responding in kind. He was also reluctant to allow Mr Ford to cut away a new and expensive pair of pants in order to examine the plaintiff's leg above the knee. Ultimately the pants were cut away on arrival at Sir Charles Gardiner Hospital.
Two police officers who attended the accident scene were called as witnesses by the defendant. Senior Constable Pickering completed the road traffic accident report "P72": Exhibit 9. However, when he arrived the plaintiff was already in the ambulance and quite properly Pickering did not interfere with the care that the plaintiff was being given. Instead, he waited until the ambulance attendant had obtained the plaintiff's details and then Senior Constable Pickering copied those details. Senior Constable Pickering's training and experience readily qualified him to give opinion evidence with respect to intoxication. The only evidence in that respect, however, emerged in cross‑examination when Senior Constable Pickering explained that the fact that the plaintiff was intoxicated was another reason that he did not take a statement from him. In cross-examination he was further asked "What do you mean by intoxicated?" and Senior Constable Pickering replied:
"He was affected by alcohol, clearly affected by alcohol, and when I got in the ambulance I could clearly smell the alcohol."
The ambulance driver, Mrs Ibrahim, also gave evidence that the plaintiff appeared intoxicated because he smelt of alcohol and because of his tone of voice when he answered the questions of the ambulance driver and attendant, and because of the way he was "playing up to the crowd". It was not apparent that Mrs Ibrahim appreciated that the plaintiff was surrounded by his cricketing friends, nor of the teasing that they had directed at him.
Ultimately, there was no issue but that the plaintiff was affected by alcohol. Depending on precisely what he had to drink and whether it was mid‑strength or full‑strength beer during the course of the day, as well as a variety of other factors referred to by the expert pharmacologist Dr Joyce in his evidence, estimates of the plaintiff's blood alcohol level at the time of the accident ranged from 0.04 to 0.11 per cent. In a report prepared by Dr Joyce tendered as Exhibit 6, Dr Joyce set out the manifestations of different concentrations of alcohol.
There are four phases of intoxication ranging from sobriety, to euphoria, excitement and finally confusion. The last stage, "confusion", is said to occur with blood alcohol concentrations of 0.18 to 0.30 per cent. In this stage, the affected person displays disorientation, mental confusion, impaired balance, muscular incoordination, a staggering gait and slurred speech. In the stage of "excitement" at blood alcohol concentrations of 0.09 to 0.025 per cent, an affected person may display emotional instability, decreased inhibitions, loss of critical judgment, impairment of memory and comprehension as well as some muscular incoordination. In the "euphoria" stage at 0.03 to 0.09 per cent, there is mild euphoria, sociability, talkativeness, increased self-confidence, decreased inhibition and a diminution of attention, judgment and control. There is an obvious overlap in the categories, reflecting the fact that people naturally vary in their sensitivity to alcohol and may develop tolerance as a consequence of exposure to it.
Following the game at Subiaco Oval the plaintiff and Daniel Howes walked over to Cambridge Street. There, according to the plaintiff, he had another pint and a half of Guinness in the space of perhaps a little more than an hour. He and Howes walked out of the pub for 20 or 30 metres before hailing the defendant's taxi. Putting aside for one moment the defendant's evidence that the plaintiff went to sleep in the back of the taxi, there is nothing in the defendant's evidence that suggests behaviour by either the plaintiff or Howes showing some significant stage of intoxication.
Senior Constable Pickering's opinion about the plaintiff's intoxication was essentially a 'bare' opinion. That is, apart from the smell of alcohol, the opinion was unsupported in evidence by any other facts relied upon. Mrs Ibrahim's opinion took into account one additional fact being the plaintiff's manner in responding to the inquiries of the ambulance crew, but she was perhaps less understanding of the plaintiff's circumstances than Kingsley Ford. Nor do I think it is possible to draw any particular conclusion from the plaintiff's initial reluctance to sacrifice an expensive new pair of trousers.
In any event, there is no issue but that the plaintiff was intoxicated to some degree. The real question is, what degree? The evidence of Mr Ford as to what he recorded in the patient care record shows, hardly surprisingly, that the plaintiff was affected by alcohol but it does not suggest the stages of "confusion" or "excitement". Rather, it would appear that the plaintiff was in the stage of intoxication described by Dr Joyce as "euphoria". That would also correspond to what, in my view on all of the evidence, was the plaintiff's probable blood alcohol concentration somewhere between 0.05 and 0.08.
While the plaintiff was unquestionably affected by alcohol and had a blood alcohol concentration that would have made it unlawful for him to drive a car, it could not be said that he was exhibiting the kinds of symptoms that suggested that he was in a state where he might step out of a moving car.
Intoxication was also an issue with respect to Daniel Howes. In my view Howes was the more intoxicated of the two men. There was evidence from one of the police officers that Howes described the accident taking place when both he and the plaintiff had stepped out of the taxi to pay. Obviously that makes little sense. It also seemed to me from the nature of the evidence that he gave during the course of the trial that there were a number of matters that he struggled to recall and was moved to reconstruct. I do not place much reliance on the evidence of Howes except where it is corroborated by other evidence.
The defendant was of course under a particular disadvantage in that English is not his native language. As the transcript reveals, he had difficulties with grammar and syntax. However, he has worked as a taxi driver with Swan Taxis since 1998. He had no apparent difficulty in answering any sensible questions that were put to him. Nor did I have any difficulty in understanding him, except when the level of his voice dropped.
There were two aspects of the defendant's evidence that troubled me. The first was his spontaneous recollection of the conversation with Howes that I have already referred to where they were said to have discussed the fact that the plaintiff was asleep. The second was the manner of his giving evidence with respect to the topic of the dome light of the taxi.

The dome light

There is every reason to expect that the dome light would come on if the rear door had opened. It would have been obvious and would have alerted the defendant to the fact that the door had opened. Despite that, the sum total of the defendant's evidence-in-chief on the subject was "Well, there should be a light or – I didn't notice if that happens". In the course of cross-examination his initial answer on that topic was not in fact responsive:
"And you didn't see the light come on before you heard the scream? ‑ No, I can't recall that.
Would that have been because the light was already on because you were accepting payment from the front seat passenger? ‑ I do that automatically. Yeah without thinking. Just touch the button, it's on."
Ultimately he accepted that the reason that he did not notice the light come on when the door opened might well be because the dome light was already on. It appeared to me, however, that he tried to avoid the obvious implication of the dome light coming on in this way (at T 136):
"And you never flip the lights on until the car is stationary. You agree with that, don't you? ‑ No, many times I do that early, even sometimes where a long way before the destination they suggest they want pull their wallet and make sure they have money or what, to get the card and all that.
That didn't happen on this occasion though, did it? ‑ No, but just I don't recall it."
Of course, the occupants of the car had been trying to identify number 3 Charlwood Way, the passengers' destination. The side of the street where number 3 was had a solid line of parked cars that would have obstructed the view of the driveway of number 3 until the taxi was virtually upon it.
The defendant's evidence (at T 126) was that when they arrived at 3 Charlwood Way the defendant "indicated" to Howes that "it's not possible for me to get into that driveway, plus there's traffic, I see a headlight, another car coming from the other side". That was the reason, the defendant said, that Howes "indicated" to the defendant that the defendant could "drop them in the opposite, the neighbour's driveway". The defendant's evidence was that he "looked, it was clear, there was no cars and enough space for me to pull".
The plaintiff also gave evidence of the headlights of another vehicle. He referred to the taxi being in the illumination of some other car's headlights, although he did not actually see the vehicle and could not say whether it was somewhere up ahead in the road or in an adjacent driveway. Howes has never referred to there being another vehicle and was not cross-examined with respect to the matters that emerged in the course of the defendant's evidence set out in the paragraph above.
It seems improbable to me that there was an oncoming vehicle in close proximity to the defendant's taxi prior to the accident. While the plaintiff referred to the effects of illumination from some nearby vehicle, neither he nor Howes reported seeing the vehicle as one might have expected if it had been right in front of the taxi. Of course I have largely discounted Mr Howes' evidence, particularly as to any matter of detail, for the reasons I have previously mentioned. Nonetheless, it seems significant that he has never reported such a vehicle. Nor, as I say, was he asked about it in cross‑examination.
The plaintiff by contrast seemed to me to be a fairly reliable reporter of many of the details of the evening both before and after his accident. Once the taxi had rolled onto his foot, he might be forgiven for not having observed another vehicle. However, with cars parked on the west side of Charlwood, it would have been very difficult, if it had been possible, for another vehicle to travel north on Charlwood with the defendant's taxi marked in the position shown on Exhibit 1, photo 3 where the defendant said the plaintiff's accident occurred. If there had been a car travelling north that prompted the defendant to pull the taxi into the empty driveway, the plaintiff's accident would have occurred virtually in its headlights. Allowing time for the plaintiff's foot to be trapped, for him to scream, the taxi to stop, Howes getting out to look and then the defendant getting out of the taxi to look, the defendant then getting back into the taxi and backing it up to free the plaintiff, one would expect all of those actions to be taking place under the observation of the driver or occupants of the northbound vehicle. Despite that, neither this other vehicle nor its occupants are ever observed beyond what I have already referred to.
In my view, it is also highly improbable that in all of the circumstances, given the condition of the street and the poor light, that the driver would have impaired his night vision by turning on the dome light until he had stopped the vehicle to accept payment. I find that the defendant did in fact stop his taxi on Charlwood Way in or about the place that he marked on Exhibit 1, photograph 3 and that after he stopped and turned the dome light on, the plaintiff got out of the taxi. There may well have been a moment of decision prompted either by a conversation of the kind described by the defendant or a concern about obstructing other traffic. If there was it occurred while the taxi was stationary. Just as the plaintiff planted his feet, one on the road and one just on the verge, the defendant determined to pull into the driveway slightly past and opposite number 3 Charlwood. The defendant may well have done so because he observed that he was obstructing the road for other users. There is a possibility that he observed the lights of another oncoming vehicle further up the street, but I do not accept that Howes directed the defendant into the driveway because of some oncoming vehicle, or indeed that Howes directed the defendant into the driveway at all.
In reaching these conclusions I am also assisted by comparing the evidence of the plaintiff and defendant to the fact that the taxi's left rear tyre came to rest on the plaintiff's foot and the taxi had to be reversed in order to free it.
The defendant's evidence was that from the time that he turned into Charlwood Way until the time that he heard the plaintiff scream and he stopped the car "immediately" he had been moving continuously. He said that he had reduced his speed to about '5 kilometres'.
The plaintiff's evidence was that he had time to plant his left foot on the roadway, and get his other foot onto the verge before his left foot was trapped. The defendant's evidence was, as the taxi rolled up Charlwood at 5 kilometres per hour, Howes said to him "That is the house". The defendant said that as he was about to pull into the driveway opposite, he heard a scream and stopped the car immediately. Of course, the car was stopped with its left rear wheel on the plaintiff's foot.
Unless the plaintiff had managed to get both feet out as he described, or if his left foot had been trapped as soon as it was placed on the ground and before the plaintiff had managed to place his right foot on the verge, the plaintiff's exit from a moving taxi could reasonably be expected to have been rather more sudden and dramatic.
As it was, the plaintiff shrieked when the tyre rolled on to his foot and the defendant stopped the taxi, on the plaintiff's foot, when he heard the scream. At 4 kilometres per hour, the taxi would have been travelling at 1.1 metres a second. At 3 kilometres an hour, the taxi would have been moving at 0.83 metres per second. Even with these rudimentary measurements it becomes apparent that even at 3 or 4 kilometres an hour, allowing for any kind of reaction time by the defendant, he would virtually have had to anticipate the accident in order to manage to stop the tyre precisely on the plaintiff's foot.
The conclusion that I have reached is that after the plaintiff put his feet out of the taxi the defendant determined at that point to pull completely into the opposite driveway. He removed his foot from the brake pedal to commence to pull into the driveway, as he said, after looking to see that the driveway was clear so that he could pull in, and the taxi slowly rolled onto the plaintiff's foot. Because the taxi was moving so slowly, when the plaintiff cried out and the defendant instinctively reapplied the brakes, the taxi came to a stop on the plaintiff's foot. It follows that I do not accept the defendant's evidence as to the way that the accident occurred.

Intoxication and contributory negligence

There was a considerable amount of evidence from the plaintiff himself about his consumption of alcohol prior to the accident. There was evidence led from Dr Joyce as to the physiological consequences of consumption of various amounts of alcohol given the plaintiff's weight, height, age, state of health and other factors. Ultimately, it was conceded by counsel for the plaintiff that at the time of the accident, the plaintiff was probably impaired within the definition provided in s 5L(4) of the Civil Liability Act. "Intoxication" is there defined to mean "… affected by alcohol … capable of intoxicating a person to such an extent that the person's capacity to exercise reasonable care and skill is impaired". Counsel for the plaintiff argues however that notwithstanding the fact that the plaintiff was intoxicated, the plaintiff nonetheless acted reasonably and in no different way to anyone in the same position who was not intoxicated. Accordingly, it is submitted the plaintiff has brought himself within s 5L(3) of the Act in that he has established on the balance of probabilities that his intoxication did not contribute in any way to the cause of the harm.
Having reached the conclusion that the plaintiff was in fact a fairly reliable reporter of the details of the accident, I must still ask myself whether I am satisfied that the plaintiff's intoxication did not contribute in any way to the cause of the harm that he suffered. In all the circumstances here, it seems to me that it would have made no difference at all if the plaintiff was completely sober. All he did was step out of a stopped taxi. There was no error of judgment on his part in doing so. It follows that I am satisfied that his intoxication did not in fact contribute to the harm that he suffered.
There will be judgment for the plaintiff. I will hear the parties with respect to the terms of any order including costs.