Kohlberger v North - [2011] WADC 23

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KOHLBERGER -v- NORTH [2011] WADC 23

CORAM: STAVRIANOU DCJ

HEARD: 1 - 3 NOVEMBER 2010

DELIVERED : 16 FEBRUARY 2011

FILE NO/S: CIV 2050 of 2007

BETWEEN: JOSHUA KEVIN KOHLBERGER
Plaintiff
AND
DONALD KIMBERLY NORTH
Defendant

Catchwords:

Negligence - Motor vehicle - Causation - Turns on own facts

Legislation:

Civil Liability Act 2002

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Mr D M G Burton

Solicitors:

Plaintiff: Simon Walters
Defendant: SRB Legal

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

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

STAVRIANOU DCJ:

Introduction

Joshua Kevin Kohlberger, the plaintiff, alleges that on 3 April 2006, he was injured when a motor vehicle driven by Donald Kimberly North, the defendant, collided with him. In the alternative, he alleges that he suffered injury in avoiding being struck.
The trial proceeded as a determination of liability.
Mr Kohlberger claims in negligence that by reason of the driving of Mr North, he suffered injury, in particular to his right shoulder.
Mr North denies he was negligent as alleged.
The principal issues for determination in this case are:
1.Did Mr North's vehicle collide with Mr Kohlberger or cause him to avoid being struck?
2.Whether any breach of duty on Mr North's part caused injuries to Mr Kohlberger?

The scene

The alleged collision occurred on a track leading to Settlers Beach near Cossack. The track runs north-south with a carpark at the northern end. On either side of the track there are windrows created by the build up of material. Beyond the windrows is bush. There is an area of marsh land between the track and the beach.

The facts

In April 2006, Mr Kohlberger and a friend Michael Zetner went camping in the north‑west of the state in Mr Zetner's Landcruiser.
At about 6.00 am on 3 April 2006, Mr Kohlberger and Mr Zetner drove to Settler's Beach in the Landcruiser to go mud crabbing. It became bogged in the marsh and at about midday they sought assistance from Mr North.
Mr North conducted an earthmoving business and agreed to help for a fee of $300.
Mr Kohlberger also rang another friend, Geoffrey David Ellis for assistance.
Mr North arrived at the scene in his Hilux utility. Jamie Duffield, an employee travelled to the scene with him.
Mr North arranged for another of his employees to take a grader to the scene. However, the grader could not be used to get the Landcruiser out because of the risk it also would get bogged.
Mr Ellis drove his father's Nissan to the scene with Mark Anthony Nettlefold and arrived at about 4.00 pm.
Mr Kohlberger used the Nissan to retrieve the Landcruiser.
The Landcruiser was driven from its bogged location and parked on the eastern side of the track. The Nissan was also parked on that side of the track. Both vehicles were facing south. Mr North then approached Mr Kohlberger for payment. An argument developed over payment during which Mr Kohlberger abused Mr North.
Mr North said to Mr Kohlberger during the argument that he would put the Landcruiser back into the bog. He then sat in the Landcruiser. There followed a further altercation during which Mr Kohlberger punched Mr North a number of times. Mr North then drove away in the Landcruiser.
Mr North drove south towards the main road then back to the scene. When he arrived back to where the Nissan was parked he drove the Landcruiser into it causing damage to each.
Mr North got out of the Landcruiser and then walked with Mr Duffield to the Hilux which was facing north. He then drove in the Hilux to the carpark, did a U‑turn and then proceeded south on the track. That necessarily required them to drive past where the Landcruiser was parked on the eastern side of the track.
As Mr North approached the Landcruiser he saw Mr Kohlberger. Mr Kohlberger had a rock in his hand and was on the windrow on the western side as Mr North got closer.
Mr Kohlberger maintains that a collision occurred between the Hilux and himself. He says he was thrown into the bush from the windrow.
The Hilux ended up bogged on the windrow close to where Mr Kohlberger had been standing. Mr North got out of the Hilux and approached Mr Kohlberger.
Thereafter Mr North and Mr Kohlberger were wrestling on the track with Mr North ending up on top of Mr Kohlberger. Eventually Mr North got off Mr Kohlberger, walked to the Hilux and drove from the scene.
Mr Kohlberger was taken to the police station and then hospital for treatment.

The evidence

Mr Kohlberger and Mr North's versions of events which occurred after Mr North had made the U-turn and driven along the track were significantly different.
Mr Kohlberger's case is that Mr North deliberately swerved the Hilux at him. There was a collision and he was launched from his feet and landed in the bush. Mr North's case is that there was no collision and Mr Kohlberger had jumped from the windrow into the bush.
Relevant to the issue of causation is a finding as to Mr Kohlberger's conduct subsequent to the alleged collision. Again, there is a significant difference between the evidence of Mr Kohlberger and Mr North.
Mr Kohlberger's version of the events was unreliable and unconvincing and I am not prepared to act on his evidence. There were a number of inconsistencies between his evidence and that of other witnesses.
First, whilst Mr Kohlberger admitted that he had drunk beer and smoked cannabis, he denied he had drunk port on the day. Mr Zetner gave evidence Mr Kohlberger had drunk a bottle of port which was in the car.
Secondly, Mr Kohlberger said that Mr North had struck the first blow when he was seated in the Landcruiser. Mr Zetner and Mr Ellis said it was Mr Kohlberger who threw the first punch. Mr North said he had not thrown a punch.
Thirdly, Mr Kohlberger denied that when he was standing on the windrow he had a rock in his hand. The evidence of Mr North and all of the other witnesses was to the effect that he did have a rock in his hands.
Fourthly, Mr Kohlberger said he was lying on his back after the alleged collision. The evidence of Mr Ellis and Mr Nettlefold was that he was on his stomach.
Fifthly, Mr Kohlberger denied wrestling on the track with Mr North. He admitted he was tackled onto some rocks. Mr Zetner, Mr Ellis, Mr North, Mr Duffield and Mr Nettlefold gave evidence that Mr North was wrestling with Mr Kohlberger on the track.
Sixthly, Mr Kohlberger gave evidence that Mr North had threatened him at the police station. Mr Zetner's evidence was that at the police station Mr North was not aggressive or threatening in any way. Mr North's evidence was that he told Mr Kohlberger he needed to get to hospital and offered him assistance. Mr Kohlberger's response was to abuse him.
As well as the above there were also other differences between the evidence of Mr Kohlberger and other witnesses to whom I have referred. The impression I formed was that Mr Kohlberger was not prepared to accept matters which he considered did not support or advance his claim. As an example he maintained that Mr North was the aggressor and had punched him whilst seated in the Landcruiser. This was not the evidence of other witnesses. Specifically Mr Zetner, Mr Duffield and Mr Nettlefold referred to Mr Kohlberger being aggressive both verbally and physically. The evidence establishes that Mr Kohlberger was initially abusive and aggressive. On occasions in the course of cross‑examination Mr Kohlberger was non‑responsive.
The evidence of Mr North was far more convincing than that of Mr Kohlberger. I accept he was a truthful, accurate and reliable witness. He gave his evidence in a direct and straightforward manner. He made appropriate concessions in cross‑examination. He accepted that he had not appreciated the way Mr Kohlberger had acted towards him. He agreed he did not have Mr Zetner's consent to drive his vehicle. In relation to the time when he was seated in the Landcruiser he said he was not 'really that clever at the time'. I am satisfied that I can rely on his evidence. Mr North was cross‑examined in detail but did not resile from his account of events. His version of events was generally supported by the evidence of the witnesses other than Mr Kohlberger and Mr Zetner.
Mr Zetner and Mr Ellis were called as witnesses in Mr Kohlberger's case. Mr Zetner's response to a number of questions was that he did not know or could not remember. The impression I formed was that his recollection of events was not as good as that of witnesses called on behalf of Mr North. His evidence was in parts vague and imprecise. He was particularly concerned about the damage done to his vehicle in the collision with Mr Ellis' vehicle. He said after the crash it was just 'a daze'. In response to a question about what he could remember he said the incident had occurred 4 1/2 years ago.
Mr Ellis is 22 years of age and had known Mr Kohlberger for a number of years. He also knew Mr North. He said that 'it happened so long ago' and 'it's a bit fuzzy'. His evidence necessarily must be considered in the light of his own view as to his memory.
Mr Duffield and Mr Nettlefold were called as witnesses in Mr North's case. I am satisfied that each did their best to recollect what had occurred. They were in my view credible and reliable in the accounts they gave. Mr Nettlefold was impressive. He was impartial, and his evidence was concise and consistent. The view I formed as to the credibility and reliability of his evidence was unaffected by detailed cross‑examination.

The conduct of the parties

Mr North's evidence was that when he was initially approached by Mr Kohlberger a fee of $300 was agreed.
Mr North and his employees had been unable to assist Mr Kohlberger to remove the Landcruiser from its bogged location.
It was Mr North's evidence that after the Landcruiser was extricated by Mr Kohlberger from its bogged location it was parked behind the Nissan on the eastern side of the track. It was his evidence that Mr Kohlberger became more abusive and refused to make any payment.
When Mr North demanded payment an argument developed. Mr Zetner offered $100 which Mr North accepted. In the face of Mr Kohlberger's continued refusal to pay the balance Mr North threatened to put the Landcruiser back into the bog. It was Mr North's evidence that he then got into the Landcruiser and sat in the driver's seat. I accept that the Landcruiser was running when he got into it. Mr Kohlberger shut the driver's door at which stage Mr North felt a sharp blow to the face. He said Mr Kohlberger then 'got half a dozen into me' referring to punches.
The evidence establishes that Mr Kohlberger became angry and assaulted Mr North. Mr Zetner's evidence was that after Mr North sat in the Landcruiser Mr Kohlberger began punching him. Mr Ellis and Mr Nettlefold said Mr Kohlberger had a rock in his hand. Mr North's evidence was that he had been hit with a hard object.
Mr Duffield gave evidence that Mr Kohlberger had used abusive language when Mr North had asked for payment. Mr Duffield said Mr Kohlberger had picked up rocks and punched Mr North when he was seated in the Landcruiser.
Mr Kohlberger's conduct in punching Mr North was unreasonable, aggressive and unnecessary.
I accept that Mr Kohlberger punched Mr North on a number of occasions.
Mr Kohlberger accepted in cross-examination that his behaviour was aggressive. Mr Nettlefold had described Mr Kohlberger as being 'aggravated'.
After the punching stopped, Mr North then drove south toward the main road. After a very short period of time he then drove back to the scene.
It was Mr North's evidence that he was going to return to the scene and then 'get going'. As he approached the scene Mr North saw Mr Kohlberger with rocks in his hands. Mr North then crashed the Landcruiser into the Nissan.
Mr North got out of the Landcruiser. As he did so he saw Mr Kohlberger with rocks in his hands in a throwing position. Mr North walked backwards to his Hilux with Mr Duffield. A rock thrown by Mr Kohlberger struck Mr Duffield on the leg. Mr Kohlberger in his evidence initially denied he had thrown rocks at Mr North. He later admitted having thrown a rock which struck Mr Duffield on the leg. That was Mr Duffield's evidence which I accept.
Mr North and Mr Duffield then got into the Hilux and drove to the carpark. They then drove back along the track.

Liability

Did Mr North's motor vehicle collide with Mr Kohlberger?

Mr Kohlberger must establish his claim on the balance of probabilities.
Mr Kohlberger's claim was put on the basis that there was a collision. In the alternative, it was alleged that if there was no collision then Mr Kohlberger was forced to take evasive action because of Mr North's manner of driving.
Each counsel submitted that the case was dependant on credibility findings.
In closing submissions counsel for Mr Kohlberger identified the 'critical findings' as being 'whether the vehicle did strike Mr Kohlberger; whether Mr Kohlberger suffered an injury as a result of being struck by the vehicle'; whether he suffered a dislocated shoulder as a result of being struck by the vehicle. As well as these matters the alternate basis of liability requires consideration.
The defence pleaded that there was no duty of care, that that there was no breach of the duty of care, that Mr Kohlberger voluntarily assumed the risk of injury (s 5F and s 5N of the Civil Liability Act 2002) and was guilty of contributory negligence. In my view this case can be determined on the basis of the critical findings required as enunciated by counsel for Mr Kohlberger and a consideration of the findings in relation to the alternate plea. On each of these issues I have found against Mr Kohlberger.
Mr Kohlberger did not give evidence that he took any evasive action because of the driving of the Landcruiser. The alternate plea needs to be seen in the light of his evidence that there was a collision.
Mr Kohlberger's version of events was that Mr North had 'pulled the car last minute from left to right and hit me on top of the hill. The impact sent me flying down this hill'. It was his evidence he felt a sharp pain in his right shoulder at the time and was full of adrenalin. In cross‑examination Mr Kohlberger said that after the alleged collision he had jumped up. He said he thought that he had then used insulting language and said to Mr North that he had missed him. It was his evidence Mr North got out of the Hilux but fell or rolled down the hill and started trying to punch into him while he was on the ground. It was Mr Kohlberger's evidence that Mr North landed on top of him and it was at that stage he said he realised he had a shoulder injury. Everyone had then pulled Mr North off him.
Mr Zetner's evidence was that there had been a collision between Mr North's vehicle and Mr Kohlberger. It was his evidence that as the car hit Mr Kohlberger 'Josh sort of leaped back at the same time'. He gave evidence that Mr Kohlberger went flying backwards and had jumped up with a rock in either hand, swearing and carrying on. In cross‑examination he said that Mr Kohlberger had a rock in each hand raised above shoulder level. He said a rock was thrown at Mr North but this part was 'sketchy'.
Mr Zetner's evidence in cross-examination was that his view was not blocked and the Hilux had hit Mr Kohlberger. Given the doubts I have as to his recollection I am not prepared to act on his evidence. I prefer the evidence of the other witnesses who gave evidence that there was no impact.
Mr North's evidence was that he drove with Mr Duffield to the carpark where he executed a U-turn. They then drove in a southerly direction back to the scene.
Mr North's evidence was that as he approached the scene he was probably in third gear and travelling at 20 to 25 kph. It was his evidence that as he passed the Landcruiser Mr Kohlberger had run out across the track and jumped on to the windrow on the western side of the track. He had rocks in his hand. It was Mr North's evidence that Mr Kohlberger was aggressive. Mr North had driven his car 'real close to him, again not intentionally trying to hit the guy at all'. Mr North said Mr Kohlberger had jumped back and his vehicle had 'bellied out' on the windrow. Mr Kohlberger had jumped from the windrow down into a gully.
Mr North's evidence was there was no collision.
I accept and prefer Mr North's evidence to that of Mr Kohlberger. His version is supported by the evidence of Mr Duffield and Mr Nettlefold. It was Mr Duffield's evidence that he approached with Mr North in the Landcruiser. Mr Kohlberger had moved across in front of the vehicle. Mr Duffield gave evidence that the Landcruiser had become bogged on the windrow.
Mr Duffield agreed that in the police statement he said he was 'pretty sure' the car did not hit Mr Kohlberger. On being asked about the statement he said that he was not certain the car did not hit Mr Kohlberger. He said that before the Hilux had stopped Mr Kohlberger had gone down the actual side of the hill and had 'sort of jumped out the way'. Mr Kohlberger had jumped off the side of the hill. He gave evidence that it felt like they had stopped on the windrow not that there was an impact to the front of the car.
Mr Nettlefold's evidence was that there was no contact at all. Mr Nettlefold had a plain view of the scene. He was adamant there was no contact at all. He was about 5 m to 10 m away at the time. He said he saw Mr Kohlberger jump off to the side from the windrow.
Mr Ellis did not see any impact.
It was the evidence of Mr North that he had got out of his vehicle and saw Mr Kohlberger laying quietly in the gully. Mr Kohlberger had then abused him. Mr Kohlberger made his way back up the windrow and had a rock in his right hand above his head in a throwing position. Mr Kohlberger tried to throw the rock at Mr North. Mr North eventually ended up on top of Mr Kohlberger on the eastern side of the track in a wrestling contest. Mr Kohlberger began to scream and Mr North let him go. I accept that to be the case.
Mr North's version of events is supported by other evidence. Mr Zetner's evidence was that Mr North and Mr Kohlberger had wrestled on the side of the track. This was also the evidence of Mr Ellis.
It was the evidence of Mr Zetner, Mr Ellis and Mr Duffield that immediately after the alleged collision Mr Kohlberger had jumped up and laughed at and abused Mr North. The substance of what was said by Mr Kohlberger was that he had in some way 'fooled' Mr North. This is consistent with him having jumped off the windrow as Mr North said and that he had not done so to avoid the Hilux and a collision.
The first occasion Mr Kohlberger had been heard to scream in pain was after he had been wrestling Mr North. This was the evidence of Mr North, Mr Duffield and Mr Nettlefold.
I have no hesitation in accepting the evidence of Mr Ellis, Mr Duffield and Mr Nettlefold in their description of Mr Kohlberger's conduct subsequent to the alleged collision. I am not prepared to accept and rely upon the evidence of Mr Kohlberger. I prefer the evidence of Mr North and his witnesses.
I am satisfied in all the circumstances there was no collision. The evidence is that after Mr North's vehicle became bogged on the windrow Mr Kohlberger stood up and abused Mr North. He jumped from the windrow into the bush on the side of the windrow. He was not injured in that action. He did not jump to avoid a collision. No witness gave evidence to that effect.
I am not satisfied that because of Mr North's manner of driving Mr Kohlberger took any evasive action.
In the circumstances neither basis upon which Mr Kohlberger's claim is put has been made out and the action must be dismissed.

Mr Kohlberger's injuries and causation

In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation (s 5D of the Civil Liability Act 2002).

Causation will be established if the relevant act or omission materially contributed to the damage. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ).
Mr Kohlberger's evidence was that after the impact with Mr North's vehicle he had been 'sent flying into the bushes'. He had felt a sharp pain in his right shoulder. As well as a dislocated shoulder, he said he had cuts and scrapes, abrasions and a rolled ankle.
Dr Peter Ginbey examined Mr Kohlberger on 4 April 2006. It was his evidence that the primary complaint he directed his attention to was the shoulder dislocation. He opined that the right shoulder dislocation required a high force blow to the front of it. He was asked about the cause of the injuries. It was his view that the injuries could possibly be caused by a blow involving a motor vehicle or a person falling on top of Mr Kohlberger.
It was Dr Ginbey's view that lifting a rock above shoulder height and throwing it would not be consistent with the existence of a dislocated shoulder.
Dr Ginbey opined that a direct hit involving the force of a vehicle upon the centre of the body, trunk, back or abdomen would certainly have caused more significant injuries than what he saw. However, he did consider that a glancing blow could have caused the injuries.
Mr Zetner, Mr Ellis, Mr Duffield, Mr Nettlefold and Mr North gave evidence that after the alleged collision, Mr Kohlberger picked up a rock and raised it to above shoulder height. Mr Zetner said Mr Kohlberger had jumped up with two rocks in his hands above shoulder height. He said Mr Kohlberger had thrown a rock. The other witnesses said that Mr Kohlberger held a rock above the right shoulder.
Mr Ellis gave evidence that Mr Kohlberger threw a rock at Mr North and has his arm elevated above shoulder level. Mr North's evidence was that Mr Kohlberger had raised the rock in his right hand above his shoulder in a throwing position and thrown it at him. Mr Duffield said that Mr Kohlberger had lifted his right hand above his shoulder and thought he had thrown the rock. Mr Nettlefold said Mr Kohlberger held the rock in his right arm above his right shoulder and had drawn back to throw it but did not get the chance. The evidence of these witnesses was generally consistent and I have no reason to doubt what they said in this respect.
Following the alleged collision, Mr Kohlberger and Mr North had wrestled on the track. Mr Kohlberger's evidence was Mr North had tackled him and he had fallen onto the ground with Mr North on top of him. It was the evidence of Mr Zetner that Mr Kohlberger had fallen on some rocks in the wrestling contest and Mr North's body was on top of Mr Kohlberger. I am satisfied that in the course of the contest, Mr North landed on Mr Kohlberger. Mr North weighed 110 kg at the time. As Dr Ginbey said, Mr North landing on Mr Kohlberger was a possible cause of the shoulder injury.
The weight of the evidence establishes that Mr Kohlberger did lift his right arm above shoulder height immediately after the alleged collision. This action was inconsistent with Mr Kohlberger having a dislocated right shoulder at that stage. Subsequent to the alleged collision, Mr Kohlberger wrestled with Mr North on the ground. At that time the other injuries referred to by Mr Kohlberger and noted by Dr Ginbey could have been sustained.
I am not satisfied on the balance of probabilities that Mr Kohlberger suffered any bodily injury caused by the driving by Mr North of the Hilux. There was no collision and Mr Kohlberger did not take evasive action to avoid a collision.
Mr Kohlberger has not discharged the burden upon him in relation to the issue of causation.

Conclusion

Mr Kohlberger's claim is dismissed.