Motor Accident Commissioner v Dinh

[2015] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

MOTOR ACCIDENT COMMISSIONER v DINH

[2015] SADC 36

Judgment of His Honour Judge Slattery

11 March 2015

INSURANCE - MOTOR VEHICLES

On 10 January 2010 the motor vehicle driven by the defendant collided with a pedestrian on a suburban street. The driver of the vehicle and the pedestrian were formerly married and the collision occurred during the course of the implementation of access arrangements for the couple's child and after an argument between them about access arrangements for their child.

Whether for s124A(1)(aa) of the Motor Vehicles Act 1959, the defendant deliberately and intentionally accelerated her motor vehicle in the direction of the pedestrian or whether the defendant drove her motor vehicle with reckless indifference as to whether death or injury would result to the pedestrian.

Held:

The plaintiff has failed to discharge the burden of proof upon it that the defendant deliberately and intentionally accelerated the motor vehicle driven by her in the direction of the pedestrian or that the defendant drove her motor vehicle with reckless indifference as to whether death or injury would result to the pedestrian.

Action dismissed.

Motor Vehicles Act 1959 (SA) ss 124A, 125; Criminal Law Consolidation Act 1935 (SA) s 85, referred to.
Motor Accident Commission v Compostella [2002] SADC 128; Briginshaw v Briginshaw (1938) 60 CLR 336; Rasch Nominees v Bartholomaeus (2013) 115 SASR 473; Australian Associated Motors Insurance Ltd v Wright (1997) 70 SASR 110; Clayton v Mutual community General Insurance Pt Ltd (1995) 64 SASR 353; Dreezer v Duvnjak (1996) 6 TasR 294, discussed.
Bond Air Services Limitd v Hill [1955] 2 QB 417; Tinline v Whitecross Insurance Associated Ltd [1921] 3 KB 327; Thompson v Copeland [1936] SASR 45; Kane v Dureau [1911] VLR 293; R v Conventary (1938) 59 CLR 633; Tziavrangos v Hays (1991) 5 SASR 416; Durward v Harding (1993) 61 SASR 283, considered.

MOTOR ACCIDENT COMMISSIONER v DINH
[2015] SADC 36

1. In this action the plaintiff, the Motor Accident Commission of South Australia, is the sole approved compulsory third party insurer in South Australia under the Motor Vehicles Act 1959 (SA) (the Act). On 10 January 2010 the plaintiff was the compulsory third party insurer of a 2007 Honda sedan owned by the defendant. At that time, there was a policy of insurance in force in respect of the motor vehicle within the terms of the Fourth Schedule of the Act. Under the policy, the plaintiff insured the defendant for all liability incurred through death or bodily injury to any person caused by or arising out of the use of the motor vehicle.

2. On 10 January 2010 at about 10.50 am, the defendant was the driver of the motor vehicle when it collided with a pedestrian, Angelo Quici. The collision took place on Straud Street at Cheltenham in South Australia. At the time of the accident, Mr Quici was a pedestrian on Straud Street. As a result of the collision, Mr Quici suffered a fractured tibia, damage to his right medial ligament, right ACL ligament detachment, and a right medial ligament detachment and bruising. The background to both Mr Quici and the defendant being present on Straud Street and the circumstances as they developed during the events on 10 January 2010 are at the heart of this action.

3. In its pleadings the plaintiff alleges that the defendant:

   (a)    Deliberately and intentionally accelerated her motor vehicle in the direction of the third party;

   (b)    Drove the motor vehicle with reckless indifference as to whether death, injury, or property damage would result;

   (c)    Drove the motor vehicle in a manner dangerous to the public;

   (d)    Failed to stop, slow, appropriately swerve or otherwise manoeuvre the motor vehicle so as to avoid the accident;

   (e)    Fail to sound the horn of the motor vehicle as she approached Mr Quici.

4. The plaintiff alleges that the defendant’s driving the motor vehicle caused the accident and as a result, Mr Quici claims to have suffered personal injuries, loss and damage.

5. In her defence the defendant denies these allegations and pleads that her failure to swerve or otherwise manoeuvre the vehicle so as to avoid the collision was due to her being upset, her stress and her panic at the time. She admits failing to sound the horn of the motor vehicle but says that was because she was in a state of upset, stress and panic, and that the accident happened very quickly and before she could collect her thoughts following a quite heated argument between herself and the third party Mr Quici.[1]

   [1] Paragraphs 1, 2, 3, 4, 5 and 6 of the Second Statement of Claim; Paragraphs 3 of the Second Defence.

6. The defendant denies the assertion that at the relevant time of the accident, Mr Quici was walking back towards his motor vehicle. As the evidence developed the defendant was unable to maintain this denial. The defendant alleges that prior to the accident occurring, Mr Quici had harassed, threatened and intimidated the defendant and had breached the terms of a domestic violence restraining order made by the Port Adelaide Magistrates Court on 22 July 2009.[2] For the reasons that I have set out below, I accept that the behaviour of Mr Quici may be described as harassing and intimidating conduct.

   [2] Paragraph 2 of the Second Defence.

7. It is not in contest between the parties that the plaintiff appropriately dealt with the claim pursuant to section 125 of the Act and properly made payments to or on behalf of Mr Quici of $310,809.67 in respect of the claim. The last payment was made on 21 December 2011. These proceedings were commenced in 2013.

8. The plaintiff pleads that at the time of the accident the defendant was behaving in a manner which was in breach of the policy and in particular clause 2(a) of the policy in that she drove the motor vehicle:

   (a)    With the intention of causing death or bodily injury to a person or damage to another persons property; or

   (b)    In the alternative, with reckless indifference as to whether her actions were to cause death, bodily injury or property damage.

9. The defendant denies that she was in breach of the policy of insurance in all respects.[3]

   [3] Paragraph 9 of the Second Statement of Claim; Paragraph 6 of the Second Defence.

10. The plaintiff also pleads that because the defendant is an insured person who has incurred a liability against which she is insured under Part IV of the Act and she has contravened or failed to comply with the terms of the policy, then the plaintiff is entitled to claim a statutory entitlement under section 124A of the Act to recover from the defendant all moneys paid and costs incurred by the plaintiff in respect of the claim.

11. The relevant applicable policy of insurance provides that all insured persons warrant that they will not (inter alia):

    (a)    Drive their vehicle, or do or omit to do anything in relation to the vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to anothers property or with reckless indifference as to whether such death, bodily injury or damage results;

12. Section 124A of the Motor Vehicles Act 1959 relevantly reads as follows:

    124A—Recovery by insurer

    (1) Where an insured person incurs a liability against which he or she is insured under this Part and the insured person has contravened or failed to comply with a term of the policy of insurance—

    (aa) by driving a motor vehicle, or doing or omitting to do anything in relation to a motor vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another's property, or with reckless indifference as to whether such death, bodily injury or damage results; or

    …

    the insurer may, by action in a court of competent jurisdiction, recover from the insured person any money paid or costs incurred by the insurer in respect of that liability.

    (2) Where an insured person incurs a liability against which he or she is insured under this Part and the insured person has, to the prejudice of the insurer—

    …

    (4) A court before which an action is brought for recovery from a person of a sum paid by an insurer to satisfy a liability incurred by an insured person must, if the court is to determine the amount that it is just and reasonable in the circumstances for the insurer to recover from the person, take into account—

    (a) the extent to which the person contributed to or is otherwise responsible for the liability incurred; and

    (b) any other matter that the court considers relevant.

    The accident: the scene

13. The accident took place on Straud Street Cheltenham which runs in a general north south direction. The carriage-way of the part of the street which proceeds in a general southerly direction is, generally, about 4.7 metres wide. It is a sealed bitumanised road. On the eastern side of the road is a broad verge and footpath. On the verge are trees and shrubs. Stobie poles are also placed along the footpath and on the verge of Straud Street.

14. The events leading up to and the accident the subject of this claim took place on Straud Street between the intersection of Sixth Avenue and Straud Street and Cirencester Avenue and Straud Street. Cirencester Avenue runs in a generally easterly direction off of Straud Street. Sixth Avenue runs in a generally westerly direction from Straud Street. There is a traffic island positioned on the roadway of Straud Street between those two avenues and it is broken in the middle for the purposes of a walkway across the street.

15. At a point approximately central to the footpath and the kerbing of the intersection of Straud Street and Cirencester Avenue there is a stobie pole. There is a second stobie pole further to the north on Straud Street, and it is positioned in line with the northern-most boundary of Sixth Avenue where it intersects Straud Street. Eighteen metres north of the stobie pole at the Cirencester Avenue intersection with Straud Street is a tree and 18.5 metres north of that tree is the second stobie pole. Between the tree and the second stobie pole is a driveway to number 35 Straud Street. Between the first stobie pole and the tree, and at about the midway point, is the walkway cut through the curbing of Straud Street and opposite the break in the traffic island in Straud Street, positioned between Cirencester Avenue and Sixth Avenue. There is a matching cut-in for a walkway on the western side of Straud Street.[4]

    [4] Exhibit P4.

16. The driveway to number 34 Straud Street appears to be about 3.5 metres in width and the second stobie pole is positioned about one to two metres north of the driveway to 34 Straud Street which is positioned on the eastern side of Straud Street.

17. At about 9.30am on 10 January 2010, Mr Quici drove his Toyota Celica motor vehicle registration VBP 716 from his home to Straud Street, Cheltenham. He did so under arrangements made over the telephone with his former wife, the defendant. These arrangements made were for the defendant to hand over their daughter A for an access visit with Mr Quici. He intended to take a holiday with his daughter. Immediately prior to that time, A had been on a holiday in Vietnam with her mother for a period of five weeks.

18. The defendant and Mr Quici had been married between 1999 and 2005. A was born on 25 October 2000. The defendant and Mr Quici were subsequently divorced. The arrangements for the care of A were that the time that she spends with each parent is the same and usually done on a general 50:50 basis.

19. Although there was little substantive evidence on the point, it is quite apparent that the matrimonial break up between Mr Quici and the defendant was very acrimonious. The relationship appears to have remained acrimonious subsequently and without abatement. In 2009 the defendant applied for a Domestic Violence Restraining order against Mr Quici. That was granted to her on 22 July 2009 by an order of the Port Adelaide Magistrates Court.[5] The application was heard in the absence of Mr Quici and the court was satisfied that there was a reasonable apprehension that he may, unless restrained, commit domestic violence. The relevant terms of the Domestic Violence order read as follows:

    [5] Exhibit P6.

    The defendant is restrained in the following terms:

    1.   This order lasts for a period of until further order from 22^nd July, 2009.

    2.   For the purpose of this order ‘the protected person’ means the following person or any one or more of the following people: Cathy Phuong DINH, A Gianna QUICI (dob 25/10/2000).

    3.   The defendant is restrained from being on premises at which the protected persons may be staying or residing from time to time.

    4.   The defendant is restrained from attending within 100 metres of the boundary of the premises at which the protected persons may be staying or residing from time to time.

    5.   The defendant is restrained from being on or entering the premises at which the protected persons may be working from time to time.

    6.   The defendant is prohibited from attending at the following locations and any other places frequented by the protected person: 1 Lachlan Street, FERRYDEN PARK.

    7.   The defendant is not to approach, follow, contact, communicate, harass, threaten or intimidate the protected persons either directly or indirectly or cause or allow another person to approach, follow, contact, communicate, harass, threaten or intimidate the protected persons either directly or indirectly (including by way of phone, letter, cards, SMS messages, E-mail, facsimile etc).

    Notwithstanding any conditions of this order, the following contact by the defendant is permitted.

    (a)For any prior arrangement in respect of access to children, namely A Gianna QUICI.

    (b)During necessary attendances at any court or tribunal hearing at which the defendant is required to attend.

    (c)That contact with or access to the children can take place without the defendant contacting the protected person directly and to make arrangements by abiding with Family Court Order changeover conditions.

    (d)Pursuant to any order or direction of the Family court or other court exercising jurisdiction under the Family Law Act whether in respect or counselling or otherwise.

    (e)For written contact using a message book or phone in any emergency relating to the child only.

    (f)Contact by or with a solicitor.

20. Mr Quici gave evidence on behalf of the plaintiff. Over the course of him giving his evidence, I was able to form some impressions of Mr Quici. In my view, Mr Quici disclosed traits of what is often commonly and colloquially described as an obsessive personality. It became quite apparent to me when observing Mr Quici in the witness box that once he became concerned with or focussed upon a particular issue, he became quite fixated with it and maintaining a reasonable balance of judgement was something that Mr Quici found hard to achieve.[6] Neither counsel sought to impugn the evidence of the defendant based upon the evidence of Mr Quici. I have decided to take the same approach. In my opinion, this matter can be decided upon the basis of the whole of the objective evidence that is available to me together with my assessment of the case put by the defendant. I also have the added advantage of having heard from a totally independent witness, Mr Green, whose version of events almost completely corroborates the version of events given by Mr Quici.

    [6]    I am not in any position to make any assessment about whether Mr Quici has a diagnosable obsessive personality. I have used that expression only on the basis that it is a useful lay summary.

21. In her defence, the defendant has said that Mr Quici behaved very badly on the morning of 10 January 2010; so much so that she was in real fear and trepidation for her position and that, as she asserted, Mr Quici was in breach of the terms of the restraint order.[7] At paragraph 7(a) of that order entitled ‘Contact by Mr Quici’, provision is made for some form of contact ancillary to any prior arrangement in respect of the access to A. The events as they occurred in the morning of 10 January 2010 were associated with access. It was not in contest between the parties that the defendant had taken A on a five week holiday to her homeland in Vietnam, and from where she came some 19 years prior to January 2010. That visit had occurred with the permission of Mr Quici. And the events that occurred on that day followed upon oral arrangements concerning access made between Mr Quici and the defendant. It would be a surprise to suggest that the parties did not forsee that under the arrangements they made that they would come into close proximity at the handover of A.

    [7] Exhibit P7.

22. The situation as between the defendant and Mr Quici was that they communicated through a book which each of them held at the time that they had the care and control of A during access periods. It was called the communication book. It was the only way in which they communicated with each other. This process was recommended by the Family Court. It is an unfortunate reflection on the state to which the relationship between Mr Quici and the defendant had deteriorated.

23. As explained by Judge Kitchen in his Honour’s decision in Motor Accident Commission v Compostella,[8] because of the seriousness of the allegations made against the defendant I have decided that I should apply the civil onus consistent with the decision of the High Court in Briginshaw v Briginshaw.[9]

    [8] [2002] SADC 128 (26 September 2002) at [8].

    [9] (1938) 60 CLR 336.

24. In Rasch Nominees v Bartholomaeus[10] Gray J explained the position as follows:

    [10] (2013) 115 SASR 473 at [18] - [19].

    The standard of proof required in a civil case where serious allegations are made was discussed in Rejfek v McElroy where Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ identified the Briginshaw principle and observed:

    …The “clarity” of the proof required, where so serious a matter as fraud is to be found, is an acknowledgement that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v Briginshaw, per Dixon J; Helton v Allen per Starke J; Smith Bros v Madden, per Dixon J.

    But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v Allen per Dixon, Evatt and McTiernan JJ. ..

    Further observations were made in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, where the High Court explained that the ordinary standard of proof in civil litigation, proof on the balance of probabilities, applied even where the matter to be proved involved criminal conduct or fraud. The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. In particular, Mason CJ, Brennan, Deane and Gaudron JJ observed:

    The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

    The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description , or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …

    There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of eh gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.

    I have adopted and applied his Honour’s approach in this action.

1. If it were necessary for me to finally decide the point, in my opinion, the meeting between the defendant and Mr Quici on the morning of 10 January did not contravene the terms of that order. It was put to me by the defendant that it was not possible for Mr Quici to come within 100 metres of the defendant but that restriction is not reflected in the terms of the order made by the court. It was at the insistence of the defendant that the parties rendezvous at the Straud Street premises which was near to a church frequented by the defendant. That church is situate on the southern corner of the intersection of Cirencester Avenue and Straud Street and is identified as the Cheltenham Baptist Church on Exhibit P3.

2. Mr Quici gave evidence that whilst the defendant and their daughter were in Vietnam, a telephone conversation took place during which arrangements were made for Mr Quici to take A for a holiday to the Yorke Peninsula. Arrangements were made for collection of A at the Straud Street address. In her evidence, the defendant said that these arrangements were not made until the morning of her return from Vietnam which was 9 January 2010. This matter was not a proposition that was put to Mr Quici in cross examination.

3. I am satisfied on the whole of the evidence that the arrangements for Mr Quici to take A on a holiday upon her return from Vietnam and for the meeting to take place at the Straud Street address occurred in a telephone conversation whilst the defendant was still in Vietnam. There is no independent evidence of any telephonic contact between Mr Quici and the defendant Ms Dinh on 9 January 2010. I am therefore not prepared to accept that version of evidence given by Ms Dinh.

   The relevant facts

4. On the morning of 10 January 2010, Mr Quici arrived at Straud Street at about 9.30am. In order to identify where he positioned his car and the events that followed, it is necessary to view exhibits P1, P2, P3 and P4. Each of those exhibits discloses a tree on Straud Street. The tree is situate on the eastern side of the street and north of the intersection of Cirencester Avenue and Straud Street and slightly to the south of the intersection of Sixth Avenue and Straud Street. As I have earlier described there is a tree situate 18 metres from the first stobie pole on Straud Street. The police photographs show that the tree threw some shade on that day.

5. Mr Quici parked under the tree at about 9.30 am on that day and waited for the defendant to arrive with A. Mr Quici parked underneath the tree for shade because it was a warm day. At or about 10.00 o’clock, and it may have been a few minutes before 10 o’clock, the defendant had not arrived with A and so Mr Quici rang the defendant to enquire of their whereabouts. This phone call may have taken place as early as about 9.50am but the evidence is not clear on the point.

6. In the telephone conversation Mr Quici was told by the defendant that A was tired and she had not been able to rouse her from a deep sleep. This is understandable bearing in mind that they had returned from Vietnam via Melbourne on the previous day. At some time after 10 o’clock, the defendant arrived at the rendezvous point. Mr Quici thought that she arrived at about 10.30.[11] Mr Quici recalled that the defendant parked her vehicle behind his, on the same side of the road and in the vicinity of the driveway to number 34 Straud Street.[12] The defendant gave evidence that she parked to the north of the driveway of 34 Straud Street and in the vicinity of the second stobie pole. There was no vehicle parked between Mr Quici’s vehicle and the defendant’s vehicle. The position of the stobie pole opposite Sixth Avenue and on Straud Street is evident from Exhibit P4.

   [11] T26 line 18.

   [12] Exhibit P4.

7. Mr Quici gave evidence that when the defendant arrived, he got out of his car, went to the back of his vehicle and stood on the footpath. His daughter ran up to him and greeted him.[13] He said that the defendant remained near to her car holding A’s school bag and then placed it on the footpath and gave him some instructions about her school clothes and a doctors appointment.[14]

   [13] T26 line 34.

   [14] T27 line 4.

8. Mr Quici then orally raised with the defendant the fact that he wanted to fix up the Family Court orders which he thought were badly written by their lawyers. In my view, it was inappropriate for Mr Quici to raise that matter at that time. That was a matter that should have been raised between solicitors or at the least by some application to the Family Court in order to clarify what he saw as the problem and how it may be corrected. His view was that some of the expressions within the orders of the Family Court needed to be tightened up. He saw himself as being meticulous.[15]

   [15] T28 line 6.

9. Not surprisingly, the defendant said that she was not interested in any discussion about Family Court orders, and she wanted no discussion about those matters. She was happy with the way that things were. Mr Quici then insisted that things had to be fixed up.[16] Mr Quici said he thought that there had to be better communication and that the communication book really was not working.

   [16] T28 lines 12-18.

10. The defendant refused to engage in conversation about the matter. Mr Quici said her tone was curt. This is not surprising. This was neither the time nor the place for these matters to be discussed.

11. Mr Quici said that these discussions took place between the two cars. He said that the defendant parked her car a couple of metres behind his car.[17] A review of exhibits P1, P2, P3 and P4 indicates that there was some 8 metres of space between the tree and the driveway of number 34 Straud Street. The defendant’s evidence was that her car remained to the north of that driveway and Mr Quici’s evidence was that he had parked in the shade of the tree on Straud Street. His car was a small car, a Toyota “Celica” two door car. The defendant’s car was a small car as well, a Honda “Jazz” motor vehicle. There seemed to be little contest between the parties that both vehicles could have fitted in to the available space between the Cirencester Street intersection and the driveway to number 34 Straud Street but there is a difference of evidence as to where the particular cars were at any particular time. For example, if the defendant parked her vehicle adjacent to the second stobie pole on Straud Street, then there would have been about 12 metres between the front of her vehicle and the back of the vehicle driven by Mr Quici. That is a matter that will need to be resolved on the evidence but it is indicative of the space that was available to the defendant to park her vehicle behind the vehicle of Mr Quici without blocking the driveway of number 34 Straud Street.

    [17] T28 line 36.

12. Mr Quici then persisted with asking the defendant questions about the Family Court orders. He said he was speaking in a “pleading” way.[18] The defendant said that she made it quite clear that she was not interested in any conversation with him, she was happy with the court orders and nothing would change.

    [18][18] T29 line 2.

13. Mr Quici told A to get into his car which she did and at that time, he alleged that the defendant then told him something to the effect that she did not want to see his face but he again persisted in trying to talk to her about trying to fix things up.

14. Mr Quici said that the defendant then swore at him. The defendant gave evidence that Mr Quici swore at her in the most profane way. I do not need to resolve that matter but it is apparent that the conversation became very heated and I think more likely that both of them were swearing at each other. Notwithstanding the tone of the conversation and its elevated level of sound, Mr Quici said that he continued to try to talk to the defendant. In my view, this was not an appropriate thing to do because it was likely only ever to lead to more difficulties. By doing so, Mr Quici demonstrated that he appeared to be obsessive about these matters.

15. Mr Quici said that after further discussion and argument, the defendant went back to her car and entered the car via the drivers’ side door. Mr Quici was standing near to the back of his vehicle. He was standing on the drivers’ side of the boot. He then raised his voice towards the defendant. He told her that what she was doing was unbelievable and he could not understand why she was walking away.[19] At that time he raised the fact that there had been a conversation between them prior to the defendant and A leaving Australia for the five week holiday in Vietnam. At that time, a conversation took place at the Arndale Shopping Centre in Kilkenny. Mr Quici alleges that the defendant asked him whether he wanted to have eighty per cent custody of A. No significant (contrary) proposition was put to Mr Quici in cross examination that this did not occur. I am satisfied that in the period prior to the defendant and A leaving Australia for Vietnam, a conversation of that type did occur. I am not satisfied that what was discussed at the Arndale Shopping Centre required further conversation on this day but at one level it is naturally a matter that might have been raised by Mr Quici with the defendant at some time. In light of what had already transpired on that day, this was never likely to be a topic of conversation that would go far because the defendant had made it quite clear that she was not prepared to discuss any of these matters with Mr Quici. Her responses to his questions about that topic made her view quite clear.[20]

    [19] T30 line 8.

    [20] T30 lines 14-36.

16. After the defendant got into her car, Mr Quici approached the car; he told the defendant that she could not test him.[21] The defendant gave evidence, which I accept, that at that time Mr Quici walked to the drivers’ side door and knocked on the window. By that time she was sitting in the motor vehicle with the windows up. Mr Quici said that he knocked on the window to get her attention. The defendant alleged that Mr Quici was banging on the window but Mr Quici was adamant in his evidence that he was knocking on the window. It is not necessary for me to finally resolve that matter but it seems more likely that in the elevated tensions that were occurring, neither party could be completely sure what was happening. The defendant said in her evidence that she feared for her personal safety as a result of the behaviour of Mr Quici and the severity of the knocking. In my opinion this is a reasonable reaction on the part the defendant. Mr Quici is a man of much larger size and power than the defendant who was quite physically small by comparison to him. Notwithstanding the level of fear that the defendant held, she was prepared to slightly lower her drivers’ side window to hear what Mr Quici had to say. This is a little surprising because the defendant said in her evidence that she was very fearful of Mr Quici and, (as she perceived it) the threatening nature of his behaviour that caused her to panic.

    [21] T31 line 24.

17. Following those events and when the defendant indicated again to Mr Quici that she was not prepared to discuss the matter further, Mr Quici moved back to the rear of his motor vehicle. It was only following that movement of Mr Quici that the collision between Mr Quici and the vehicle driven by the defendant occurred. The collision occurred when the defendant moved her car out into the carriageway of Straud Street to travel in a (general) southerly direction.

18. In her evidence, the defendant said that on 10 January 2010, Mr Quici had rung her asking to come to her home to make the collection of A from that place. She refused to do so and insisted on them meeting at the Straud Street premises. She said that when she went to the premises, she first parked about 10 metres behind Mr Quici’s vehicle. She said that after A ran to greet her father and there was a conversation about her luggage. She said that she then moved the car forward to drop off the luggage. This version contradicts the version that she gave to the police and contradicts the version given by Mr Quici. On balance, I think that the most likely scenario is that the defendant parked her car about 2 to 3 metres behind the car of Mr Quici.

19. The defendant then gave evidence of what occurred immediately prior to and during at the time of the collision with Mr Quici. She said that he was standing right in front of her car and that he was doing so in order to prevent her from leaving.[22] She then said that she could not move her car forward because Mr Quici was standing in the way and so she wanted to go backwards. She said that she thought the only way that she could get out of the situation was to make a U-turn but she said that she could not do a U-turn because she would hit the median strip and she did not know what to do.[23] I am unable to accept that evidence. In my opinion, it is inconsistent with the content of the relevant exhibits.[24] Looking particularly at Exhibit P4, and accepting for the sake of discussion the position of the median strip (which is consistent with the contents of Exhibit P2 and P3), then there would have been no difficulty for the defendant to have executed a U-turn from the point immediately behind and some 2 to 3 metres distant from Mr Quici’s vehicle which was under the tree. However, the defendant did say that she was shaking and nervous at the relevant time. I accept this evidence. In my view, the approach of Mr Quici on that morning was quite inappropriate. He was insisting that his former wife have a conversation with him about a topic that was quite extraneous to the purpose of them being at that place. The defendant had earlier been represented by solicitors; orders had been made by consent in the Family Court, and a restraining order had been made by the Magistrates Court. Overall, it is quite understandable that in her physical state (she only arrived back from Vietnam the day before) the defendant would have been quite upset about the whole event.

    [22] T99 line 17.

    [23] T99 lines 27-31.

    [24] Exhibit P1, P2, P3 and P4.

20. I am satisfied on all the evidence that the defendant moved her car forward in a generally southerly direction on Straud Street when the collision occurred.

21. The defendant then gave evidence that she looked up to see Mr Quici move back towards his car and she thought that she had enough room to pass to the right hand side of his car and the eastern side of the median strip on the eastern carriageway of Straud Street moving in a generally southerly direction.[25] She said that she started to move her car forward and all that she was trying to do was get away from him and she thought that she had enough room to get through the space allowed on the carriageway.[26] She was driving a very small car and Mr Quici’s car was only a small car.[27]

    [25] T100.

    [26] T100 lines 10-21.

    [27] Exhibit D10.

22. It was then she had engaged first gear on her car and started to move forward that she said that she heard Mr Quici start to scream that he had been hurt. She stopped the car, got out of the car, looked at Mr Quici, got back into her car and drove off.[28] I am unable to accept that version of events put forward by the defendant. It is inconsistent with the evidence given by Mr Green and, where the evidence is inconsistent, I prefer the evidence of Mr Green. His evidence was that the defendant stopped, reversed her vehicle, did a U-turn, and went and travelled in a generally northerly direction on Straud Street past the Sixth Avenue intersections. Mr Green was standing slightly north of the intersection of Straud Street and Sixth Avenue.

    [28] T101 lines 11-26.

23. The defendant’s evidence was that she went forward in her car because she thought she had no choice and she wanted to go to the Port Adelaide Police Station to report the breach of the restraining orders. She said that when she drove off she still saw Mr Quici standing by his car and she was not aware that he got injured. She thought that he had tripped and that everything he was doing was a trick.[29] I am unable to accept this evidence. It is inconsistent with the evidence of Mr Green that Mr Quici was shouting out in pain and screaming that the defendant’s vehicle had hit him.

    [29] T102 lines 4-13.

24. The defendant’s evidence was that the time she arrived at the Port Adelaide police station, she was not aware of the damage to her car and she only became aware of it at the time that the police showed her the damage at the Port Adelaide police station.[30] It is difficult to know what to make of this evidence. It seems remarkable to suggest that when looking at Exhibit P5, the photograph of the defendant’s vehicle and the damage to the area above the wheel arch on the front left hand side, that the defendant would not have heard and been aware of the collision which caused that damage. In my opinion, the damage is so significant that, that the defendant must have heard the collision which caused that damage and therefore that she was aware of its occurrence.

    [30] T102 lines17-20.

25. The defendant was cross examined on a number of collateral issues including the contact that she had had with Mr Quici in the period prior to her leaving for Vietnam. It became apparent from that cross examination[31] that there had been occasions when discussions had occurred between the defendant and Mr Quici about changing the arrangements for the custody of A. Some of these discussions have taken place at the Arndale Shopping Centre when there was a changeover of access for A. These did not cause any great concern for the defendant. In contra-distinction, the defendant also said in cross examination that she thought that she had complained to the police on many occasions, at least 10, about what she alleged to Mr Quici’s breaches of the restraining order.[32] I do not accept this evidence. The defendant was only able to demonstrate in cross examination that there had been one mention to police of any potential breach by Mr Quici of the restraining order. That was on 14 July 2009.[33]

    [31] T108 – T115.

    [32] T115 – T118.

    [33] T122 line 12; T123 line 25.

26. In cross examination the defendant said that when she first parked her vehicle on Straud Street, it was at least 10 metres behind Mr Quici’s vehicle and was on the north side of the driveway of number 34 Straud Street. She said in cross examination[34] that it was after A had alighted from her car and left her bags in the car, that she moved her car forward to slightly behind, some 2 to 3 metres, the car of Mr Quici. She did this so that her daughter could pick up her belongings.[35] That version of events is inconsistent with the version given by the defendant to the police on that day which was that she parked her car 10 metres behind Mr Quici’s car but does not mention then driving the car forward.[36] The defendant agreed that the version given to the police might have been the correct version[37] because her memory would have been fresh at the time. On that basis, the defendant agreed that she refused to drive her car closer to Mr Quici when he requested her to do so.[38]

    [34] T124 lines 8-35.

    [35] T124 line 35.

    [36] T125 line 10; Exhibit P9.

    [37] T126 line 30.

    [38] T126 lines 34-38.

27. The defendant agreed that she was interviewed by an assessor from the insurer and she gave a statement to that assessor. She agreed that she said in that statement that she parked her car 10 metres behind Angelo Quici’s car and she opened the car door to get her daughter out of the car. The version of events given to the assessor was that when she called A back to pick up her bags, she did so and then went and placed her bags in Mr Quici’s car. It was then that Mr Quici started to walk towards her car.[39] The defendant then attempted to give a version of events that she thought A had been put into Mr Quici’s car straight away and that is why she did not come back and collect her bags. She agreed that that was not a version given to the police.[40] Ultimately, in cross examination, she agreed that she had moved her car or had positioned her car some 3 metres behind Mr Quici’s car.

    [39] T129 – T130.

    [40] T130 lines 28-35.

1. The defendant also then gave evidence in cross examination about how the accident occurred. She said that prior to her moving her vehicle, Mr Quici had approached the car. He had a paper in his hand. She told him that she would not speak to him and that he should use the communication book. Mr Quici said that that was too hard to do.[41] The defendant alleged that she then accused Mr Quici of breaching the restraining order which he rejected. She said that she was very nervous and shaking at that point. Mr Quici was banging on her window and it was then that she lowered her window slightly to hear what he was saying. In her mind, all she wanted to do was to get away from Mr Quici.[42] She became very scared. She was very upset. She was not angry. She was very concerned that he was badgering her about the court order and the restraining order.[43]

   [41] T135 lines 6-31.

   [42] T137 line 9.

   [43] T138 line 7.

2. After Mr Quici was banging on her window, the defendant was fearing for her life when he then started to walk back towards his car. At that time she had told him through the window opening, that she would not discuss anything with him at all. She said that she would not change anything at all.[44] I am not able to accept her version that there was no discussion at that time about changing the arrangements from Monday to Monday to Sunday to Sunday, or any difficulties dropping of A. That is the version that the defendant gave the police on the same day. I think that that version is more accurate. I am not prepared to accept any contrary evidence given by the defendant which is inconsistent with the contemporaneous version that she gave to the police.[45]

   [44] T139 line 35.

   [45] T139 lines 16-31.

3. The defendant said that at that time, Mr Quici kept on repeating to her that he wanted her to sign something. All that she could remember was the picture of him (in her mind) in front of her. She said that it all brought back her memories of Mr Quici trying to hurt her. She recalled Mr Quici trying to open her car door. She told Mr Quici that he should move out of the way because she wanted to move forward.[46]

   [46] T143 lines 14-20.

4. The defendant admitted that she knew that if Mr Quici did not move then she would come into contact with him. He then moved to the back of his car and then more to the side of his car.[47] She was then asked why she could not move off and drive around Mr Quici when he was standing at the side of his car. She said that she could not drive away because she was so scared and she was so nervous and was not confident enough to be able to drive the car away after that time. Somewhere in those conversations the defendant said that she asked Mr Quici to move again. She moved her car forward. She said that she could not go backwards.[48] I am unable to accept that version of events. Exhibit P4 discloses that if she wished to get away from the scene, she could reverse her car in a northward direction up Straud Street, do a U-turn past Sixth Street and progress in a general northerly direction down Straud Street. I do not accept the version of events given by her in which she did not do a U-turn because she thought she was going to hit the median strip. She agreed that she knew that if she drove forward and Mr Quici was in front of her vehicle, she would hit him.[49] She then attempted to move her car forward to go around him. Her intention was to go to the police station to report the incident. When she started moving her car forward Mr Quici was still in front of her car.[50] She also recalled that Mr Quici had moved back a little bit towards his car and she thought that she then had enough room to go between the car and the median strip and travel in general southerly direction along Straud Street.

   [47] T144 line 2.

   [48] T145 line 3.

   [49] T146 line 5.

   [50] T147 lines 24-29.

5. In cross examination, the defendant was asked questions about the direction that her vehicle was facing at the time of the collision with Mr Quici’s knee. The evidence given by Mr Quici, which I accept, is that that first contact was with the front left hand wheel of Ms Dinh’s vehicle.[51] After the contact with the wheel running over his right foot, his right knee collapsed into the front left hand panel of the vehicle driven by the defendant. In my opinion, the version given by the defendant[52] that her vehicle was pointing away towards the median strip at the time of the collision is not sustainable. At that time, Mr Quici’s body was positioned against his vehicle. His back was to his vehicle. Mr Quici said (and this was not challenged) that the first contact that he had with Ms Dinh’s vehicle was the front left hand wheel as it rolled over his right foot. That forced his right knee into the relevant panel of the car. In order for that to occur, it would not have been possible for the left hand front wheel to be turning away from Mr Quici’s body and so that the car was moving in the direction of the median strip. In my view, the more likely scenario, is that at the time that the collision occurred, when Mr Quici’s body was positioned as I have described, the front of the defendant’s vehicle must have been parallel with Mr Quici’s car generally and slightly inclined towards Mr Quici’s vehicle. This is the only way to explain a collision between Mr Quici’s right foot, leg and knee and that part of the vehicle driven by her, namely the panel above the front left hand wheel. This (namely that the two vehicles were largely parallel) also explains how the defendant could have reversed her vehicle and executed a U-turn on Straud Street. If the defendant’s vehicle was turning to the right to do the U-turn on Straud Street, then to have reversed the vehicle or the same wheel lock would not have brought the vehicle into collision again with Mr Quici’s body. The reason is obvious enough. Assuming that there was space between the vehicles to allow a U-turn manoeuvre to be attempted and if Mr Quici was standing with his back to his vehicle then it would have been necessary for the defendant to differently manouevre her vehicle in under to make contact with Mr Quici’s leg.

   [51] Exhibit P5.

   [52] T162 line 19; T163 line 35.

6. If there had been no change of wheel lock at the time that the defendant reversed her vehicle then she, logically, would have reversed her vehicle to the same position next to the kerb.

   The collision

7. The description of the configuration of these wheels lends weight to the conclusion that the front of the defendant’s vehicle, whilst swinging to the right, would also be swinging away from the body of Mr Quici. Thus it would only be if the front driving wheels of the defendant’s car were turned to the left to straighten the vehicle into the carriageway that there could be any possibility of contact between the right leg of Mr Quici and the front left driving wheel of the defendant’s car. And even so it would be difficult in that circumstance to make contact in the manner described by Mr Green that I accept, which is the same factual position described by Mr Quici.

8. Properly considered, these facts concerning the collision disclose that it occurred when the two vehicles were parallel to each other and so, after the defendant had moved her vehicle into the carriageway to travel south along the Straud Street carriageway.

9. Once Mr Quici understood that he was injured, his evidence was that he shuffled slightly out of the way when he was screaming out that he had been injured. Mr Green’s evidence was that he moved towards the footpath area of Straud Street, on the eastern side. Constable Mills was on duty on the relevant day at the Port Adelaide Police Station. She was tasked with a Constable Koch to attend the scene after the collision of the defendant’s car with Mr Quici. She attended at Straud Street, made observations and followed up the situation.

10. Constable Mills went back to the police station with Constable Koch. She met the defendant at the police station where the defendant told her that she was there to report a breach of an Intervention Order and also the accident. When Constable Mills first spoke to the defendant, Constable Mills has a recollection that the defendant was not sure if she actually hit Mr Quici with her car. The version of events given to Constable Mills was that the defendants heard Mr Quici starting to scream, she reversed her vehicle and then did a U-turn and drove to the police station. The version given in evidence by the defendant initially was that she was driving forward down Straud Street in a general southerly direction away from where Mr Quici was standing as he was standing in front of her car[53] but that after doing so she reversed back. She looked at Mr Quici, she thought that he was fine and was in fact trying to trick her and get her not to leave.[54] It was only when Constable Mills looked at the car driven by the defendant that it was identified that there was an obvious dent in the front left hand wheel panel of the car.[55] At that time the defendant said that she thought that when he was complaining about being in pain that Mr Quici was trying to trick her into getting out of the car so that he could assault her. The defendant recounted to Constable Mills that when she first wanted to start moving off in her car, she mistakenly had the car in reverse, the car bounced back and surprised her and she then started driving forward to move off to the middle of the road. She told Constable Mills that the doors of the car were locked and the windows were up.

    [53] T63 line 5.

    [54] T63 line 8.

    [55] Exhibit P5.

11. Constable Mills took a statement from the defendant. It was recorded.[56] The defendant agreed in cross examination, that as the statement was taken a couple of hours after the relevant events, it would be the most accurate recording of what actually occurred. In the statement, she agreed that it was a couple of days before arriving home on 7 January 2010 (not 9 January 2010) that she had a phone call from Mr Quici asking about an extended period of access to A. She said that it was during that phone call that she made arrangements to take A to the exchange point on Straud Street Cheltenham. In her evidence, the defendant said that she thought that the arrangements had only been made on the previous day when she arrived back in Melbourne.

    [56] Exhibit P9.

12. She informed the police of a number of the telephone calls at or around 10am on that day. She said that when she arrived at Straud Street, she parked about 10 metres behind Mr Quici’s car. She then removed A’s suitcase from her car whilst A ran to her father. The defendant told police that she then called her daughter back to collect her suitcase and she was asked by Mr Quici to bring her car closer to his car. She said that she refused and said to him to use the communication book if you need to speak.

13. The defendant then told Constable Mills that there were conversations about the restraining order. That topic was raised by Mr Quici. She informed Constable Mills about the exchanges between her and Mr Quici concerning the different days of access (Sunday to Sunday rather than Monday to Monday) and that Mr Quici was asking her to sign a document. It was then that she got into her car. She said that Mr Quici followed her to her car. After she got into her car and closed the door, Mr Quici began knocking on the drivers’ side window. It was because she could not hear what he was saying that she wound down the window. At that time, she said that Mr Quici began to abuse her and swear at her. The defendant said that she was looking in her car to find her phone because she wanted to call the police. She told Mr Quici to move because she wanted to move forward to leave. She then turned the engine on because she said that Mr Quici was screaming at her and she was scared. At that time, Mr Quici asked about the suggestion of him having eighty per cent care and control of A, she asked him to move and at that time, when her engine was on, he moved across to the front of her car. She revved the engine of her car to show that she intended to go and Mr Quici moved a little to the left. That is, to the outside of his car furthest from the kerb because at that time he was facing her car. She put the car into gear and accidentally put the car into reverse, the car bounced back and this startled her. She changed gears and started to go forward. She said that Mr Quici continued to yell at her and swear at her and she therefore started to move her car forward. She told Officer Mills that she started to move forward to do a U‑turn. She said that as she was turning the vehicle she heard Mr Quici screaming. She stopped the car, reversed and he continued screaming. She heard him say ‘you have broken my leg’. It was at that point that she said she got out of the car to see what happened and Mr Quici stepped towards her so she went back into her car thinking that Mr Quici was making the whole thing up. It was then that she drove to the police station to report what had happened.

14. In the version that she gave to the police, the defendant did not mention that she was aware that she had struck Mr Quici. She said that she was not aware of any damage to her car until the police pointed out the damage to her.

15. Mr Green lives at 37 Sixth Avenue Cheltenham. He was aware of an incident that took place on 10 January 2010 in the area of his home. On that day, he had been working out the back of his home and as a result of the noise that he heard on Straud Street he had cause to come and look over his side fence which fronts onto Straud Street. His house sits on the corner of Straud Street and Sixth Avenue. The fence is a typical corrugated iron type fence that starts at about 1.8 metres feet high and graduates down to about 1.5 metres high as the fence runs towards the front of the house up to Sixth Avenue.[57]

    [57] T68 – T69.

16. Mr Green became aware that there was some argument going on somewhere towards the front of his home. He recalled that the content of the argument was something about the custody of a child and he could mainly hear a man shouting and that is what got his attention and caused him to look over the fence. When he did, he became aware of a man standing outside of a car arguing with a lady in the car. He said that he saw a car parked under the tree[58]and there was a second car a bit further back.[59] Mr Green recalled that the male person was standing on the roadway outside of his car. He recalls that the argument went on for a bit.[60] Then the female (the defendant) went to drive off in her car which was the second car parked behind the car which was parked under the tree. The person took off in that car quite casually and did not seem to be in any hurry. It was heading in a general south direction towards the church on the corner of Cirencester Avenue and Straud Street. Mr Green did not know whether there was enough room for the second car to pass by the first car parked and he recalled the second car edging forward to where the male was standing next to his car. He recalled that the male person was standing towards the back of the car behind the drivers’ side door and on the drivers’ side.

    [58] Exhibits P1, P2, P3 and P4.

    [59] T69 line 37.

    [60] T70 line 19.

17. Mr Green saw the second car edging out close to the man standing adjacent to his car. He saw the second car strike the man standing adjacent to the first car and saw him get pinned up against the two cars. He said he did not hear anything when that happened and it was not like a loud bang. He said that the man commenced screaming and yelling out “my leg, my leg”.[61] Mr Green saw the second car stop and then after stopping it reversed back up Straud Street, did a U-turn at the intersection of Sixth Avenue and continued off down the road. It passed him as he was looking over the fence.

    [61] T71 lines 1-24.

18. In cross examination, Mr Green said that when the second car moved, it started turning towards the median strip so as to move forward between the median strip and the other car parked.[62] He said that he actually saw the second car driven by the woman come into contact with the man standing at the rear of his car and it was then that he heard the man scream out. His observation of the second car was that it appeared to be moving normally and not in any particular way except that his observation was that the car was to be driven between the parked car and the median strip.

    [62] T75 line 31.

19. To the extent that the evidence given by the defendant concerning the events of the day contradict the evidence given by Mr Green, I prefer the evidence of Mr Green. He was reliable, dispassionate and gave his evidence in a very matter of fact way. I have no doubt that he was attempting to accurately recall the events as they occurred.

20. The content of Exhibit P9 discloses a number of contradictions between the oral evidence given by the defendant and the version of events given to the police on the evening of 10 January 2010. For example, the defendant alleged to the police that at the time she commenced to drive away she was attempting to do a U-turn so as to drive in a general northerly direction along Straud Street. I am not able to accept that evidence. It is inconsistent both with the oral evidence given by Mr Green and Mr Quici and later, the oral evidence given by the defendant herself. That version of evidence does not accord with what may be seen to be the objective facts. On all of the available evidence, at the time that the collision occurred, Mr Quici was standing with his back to his vehicle positioned towards the rear of his vehicle. The defendant drove her vehicle in a general southerly direction on Straud Street and therefore it was necessary for her to drive past Mr Quici.

21. In his evidence Mr Quici said he was standing adjacent to the back right hand or drivers’ side tyre.[63] This is consistent with the evidence given by Mr Green. He said that the car driven by the defendant started driving towards him, after it had pulled out onto the southbound carriageway of Straud Street. He was standing with his back to the car and he felt the tyre go over his foot and then he felt a crushing movement when the car hit his knee. He said that he was basically squashed between the two vehicles and the car driven by the defendant then stopped.[64] It was then that he screamed out. He said that it all felt like it was happening in slow motion. He said that the defendant then just turned and drove a bit more in a generally southerly direction along Straud Street and this released him from the squashing of his leg. His right leg was squashed as it was the leg closest to the vehicle coming towards him from the north and travelling towards the south. As he was in intense pain he continued to scream out. He became aware that the defendant then reversed back in her vehicle. He heard the defendant call out to A to come with her but he told A to stay put. He was then able to move across his vehicle to the footpath. In the process of doing so, he noticed a very large dent in the front left hand panel, above the front left hand wheel of the defendant’s car. He recalled that the defendant then did a U-turn in her car and he recalled thinking that in so doing, that she might have nearly hit another car  travelling north on Straud Street and then left the scene.

    [63] T32 line 21.

    [64] T22 lines 25-27.

22. A number of propositions were put to Mr Quici in cross examination which proved to be incorrect. It was suggested that when the defendant first parked her car on Straud Street, that it was some 15 metres or more back behind Mr Quici’s car and north of his car on Straud Street.[65] It was suggested that it was at least implicit that the defendant was ensuring that she kept a sufficient distance from Mr Quici. It was then put that the defendant drove closer to his car. Mr Quici could only remember the defendant driving her car up to a point about 2 to 3 metres away from his car.

    [65] T46 line 5.

1. In cross examination Mr Quici also reluctantly agreed with the proposition that the appropriate thing to do on the day was, after the defendant made quite clear to him that she was not going to enter into any discussions with him about A, he should have simply taken A away and gone to the Yorke Peninsula.[66] He agreed that he had been going “on and on” about the matters on his mind and that the defendant was making it quite clear to him that she did not want to discuss the matters.[67] It was put to Mr Quici that his actions were intended to try to stop the defendant leaving the scene. Mr Quici denied that.[68] Whether or not Mr Quici intended to stop the defendant from leaving the scene, that was the effect of his actions because he was standing in front of her car and came to her side window. After that, he went back to the rear of his vehicle.[69]

   [66] T49 lines 4-9.

   [67] T49 line 22.

   [68] T50 line 9.

   [69] T 50 line 35.

   The collision: findings

2. Based upon the whole of the evidence and the inferences available on the evidence that are open to me I find, that at the time of the collision, the defendant’s vehicle was parallel to and slightly inclined towards the vehicle of Mr Quici. The front left hand wheel of the defendant’s vehicle first came into contact with Mr Quici’s right foot. Mr Quici’s right knee then came into collision with the panel almost immediately above the midway point of the panel above the left front hand wheel sometimes called the wheel arch. Exhibit P5 discloses that there is a significant dent in the front panel of the defendant’s vehicle and I find, that the collision was significant enough to cause this dent and therefore would ordinarily have been audible to the defendant at the time that the collision occurred. For those reasons I reject the defendant’s version that she was attempting to do a U-turn. I am satisfied on all of the evidence and the reasonable inferences arising from that evidence that the defendant only executed a U-turn in her vehicle after the collision and after she reversed back and down Straud Street in a generally northerly direction towards the curbing and then did a U-turn to travel north along Straud Street. I accept the evidence given by Mr Green and where his evidence conflicts with the evidence of the defendant I prefer the version given by Mr Green.

3. I accept the submissions of the plaintiff that the median strip was not an impairment to the defendant doing a U-turn in her car from the place where she said it had become stationary. In my opinion, the defendant always intended to proceed in a generally southerly direction down Straud Street.

4. The question for my consideration is whether the behaviour of the defendant satisfies the provisions of the Motor Vehicles Act namely that the defendant drove her vehicle with the intention of causing the bodily injury to Mr Quici or with reckless indifference as to whether such bodily injury resulted from her driving.

5. The defendant was charged with a criminal offence related to this incident and she pleaded guilty to a charge of driving without due care. The charge was dismissed without penalty by the Magistrate hearing the matter.

   The proper approach to the findings of fact

6. Events such as the collision the subject of the action, do not happen in segments. If it were otherwise, many harmful events could be avoided. Events occur in a continuum of conduct, happenings both controlled and uncontrolled and other background events. It is an artificial and unhelpful exercise to attempt to analyse every change in position and movement of participants and objects in an event so that they are examined from a number of different perspectives and as if in slices of acuity. It must be understood that to adopt a parallax approach risks reaching an artificial or contrived conclusion and does not take account of the imperative that the process of logic from cause to effect does not overlook the danger of conferring inevitability on an event that happens, just because it happens.

7. The event that occurred here must be assessed on the totality of what is known about it. It must be described in the following way (based upon the findings of fact that I have made). The defendant’s car was parked at least 2-3 and perhaps 12 metres behind Mr Quici’s vehicle. An argument occurred between Mr Quici and the defendant about access arrangement for their daughter A. Mr Quici was the promulgator of the issue. It was inappropriate for him to have caused the argument. A very loud exchange of voices followed that caught the attention of the neighbour Mr Green causing him to look to see what was happening. In the course of this loud exchange Mr Quici hit the window on the drivers’ door with his hand in a forceful way. The defendant became frightened to the point of being quite nervous and fearful and told Mr Quici that she wanted to leave and would not discuss the issue. She loudly revved the engine of her vehicle. Mr Quici moved away towards the back of his vehicle and then around to about where the back drivers’ side wheel arch is situate. At the same time the defendant pulled her car to the right and then to the left to proceed south on the Straud Street carriageway. When the defendant steered to the left the front left hand wheel of her vehicle went over the right foot of Mr Quici and his right leg was then struck by the car in the area above and slightly forward of the left wheel arch. Mr Quici sustained several injuries as a result of this collision.

8. At the time of the collision the front left hand side of the defendant’s vehicle was less than the body width of Mr Quici from his car. In order for the collision to have occurred in the way described and for the damage to the defendant’s car to have occurred in the place that it did, the front left had corner of the defendant’s vehicle was slightly inclined inwards towards Mr Quici. At the time of the collision he was standing against and with his back to his own vehicle adjacent to the back wheel arch of that vehicle.

   The Act: the parties’ contentions

9. Earlier in this judgement I have set out the relevant parts of s124A(1)(aa) of the Act: the focus of section 124A(1)(aa) is the intention or reckless indifference of the defendant. It is necessary for the plaintiff to prove the intention of the defendant to cause bodily injury or to be recklessly indifferent as to whether such bodily injury resulted from her actions. The plaintiff’s first contention is that the defendant intentionally drove her vehicle at Mr Quici with the result that he was crushed between the two vehicles. The plaintiff puts its case on the basis that there was no “compelling reason” for the defendant to drive her car forward when she could always have reversed and done a U-turn on Straud Street and driven away in a general northerly direction. The plaintiff contends that the defendant knew that she was attempting to manoeuvre her vehicle in through a narrow area and that Mr Quici was always in front of her, either in front of her vehicle directly or in front of her in the sense that he was adjacent to the rear of his vehicle or to the drivers’ side of his vehicle.

10. I am unable to accept this contention of the plaintiff. In my view, an assessment of the intention of the defendant must be based on the whole of the evidence. I am not satisfied that a finding of intention could or should be assessed upon a method of reasoning based upon there being no compelling reason for the defendant to have driven her car forward. Nor do I think that the plaintiff has discharged the onus of proof of intention of the defendant on the whole of the evidence. To the contrary, in any view what occurred on that day was the culmination of a series of poor judgements by all participants rather than being an act or associated with or identifiable as the intention for one of those participants.

11. I have already made findings in which I have rejected the defendant’s version that she was attempting to do a U-turn when there was a collision between her vehicle and Mr Quici’s body. In my opinion, by the time of the collision the defendant had turned into the south bound carriageway of Straud Street and her vehicle was largely parallel with the vehicle driven by Mr Quici which was, in turn, parked parallel to the eastern curb of that street.

12. The plaintiff also contends that an explanation for this intentional act may have been that the defendant was motivated by Mr Quici’s verbally aggressive and harassing behaviour. I have already made findings that the behaviour of Mr Quici on that day was inappropriate. I have described him as having what may colloquially be called an obsessive personality. The defendant did not want to discuss any matters concerning A at that time. That is quite understandable. She had just returned from a five week trip to Vietnam. She had been on a plane from Vietnam the day before and she had brought her daughter back to Australia. They had flown through Melbourne to Adelaide.

13. I accept the evidence given by Mr Green. He had a clear enough view of the collision to be able to see the vehicle driven by the defendant strike the right leg of Mr Quici. He heard Mr Quici’s raised voice. He saw the defendant move her vehicle into the carriageway of Straud Street in a casual way. She did not appear to be in a hurry. Despite the actual width of the roadway, he thought that it would be a tight fit for the defendant to move her vehicle past Mr Quici now standing with his back to his vehicle, at the point of the rear drivers’ side wheel arch. He saw the collision.

14. The applicable legal principles

15. In Australian Associated Motors Insurance Ltd v Wright[70] the court held that:

    No-one can enforce an indemnity against liability for loss or damage which it was the purpose of a criminal act to produce.

    [70] (1997) 70 SASR 110 at [114].

16. In that case, the court was discussing a situation where a fire was caused by the use of a petrol pump on the insured’s property. The use of the pump in the circumstance breached a country fire regulation and the resultant fire caused damage to both the insured’s property and to an adjoining property.

17. The insurer refused the claim alleging that because the fire was caused in circumstances of a breach of country fire regulations, it was to be seen as an illegal act and there should be no insurance which flows from the illegal act. A question in that case was which party bore the onus of establishing conduct in breach of the condition of the insurance policy. The judge at first instance in the District Court and the Full Court both agreed that the onus of proof rested on the insurer.[71] The Full Court in Wright also discussed the circumstances where an insured deliberately commits an offence and as a result there are unintended consequences for which the insured is liable. The court held that there was no inflexible rule preventing the enforcement of any claim which arises from the assured’s own crime. The court agreed with the learned author Professor Sutton[72] that:

    A rule which relieved an insurer of responsibility whenever he could show any illegal behaviour on the part of the assured would make a sham of insurance…[73]

    [71] Ibid at [114]; Bond Air Services Ltd v Hill [1955] 2 QB 417, 426, 427-428 per Lord Goddard CJ.

    [72] Insurance Law in Australia.

    [73] At page 118.

18. The Full Court, in Wright referred with approval to the decision of King CJ in the Full Court in Clayton v Mutual Community General Insurance Pty Ltd.[74] The issue in that case was that the appellant and her late husband were the registered proprietors of a house property. The husband committed suicide by igniting petrol fumes of a motor vehicle. A fire ensued and that fire completely destroyed the car and damaged the jointly owned home. An insurance repair claim of $45,000 was made under a general policy of household insurance. That claim was rejected by the insurer on the basis of two general exclusion clauses which in part read as follows:

    That the policy does not cover “loss or damage caused by the deliberate or intentional acts caused by you…” and excluding cover for “loss damage or liability arising from any unlawful act or omission by you or by any other person insured by the policy”.

    [74] (1995) 64 SASR 353.

19. It was an offence to intentionally damage property under section 85 of the Criminal Law Consolidation Act 1935 (SA). The question in the case was whether or not the surviving wife could make an enforceable claim on the insurer under the terms of the policy. The decision of the Appeal Court was written by King CJ with whom Duggan and Nyland JJ agreed. The relevant passages are set out at pages 356-357:

    ”The learned judge construed the 'act' in the phrase 'deliberate and intentional acts' as applying to the igniting of the petrol fumes disengaged from its consequences. The only question for him was whether the igniting of the fumes caused the damage to the insured premises. Such a narrow construction would have consequences which, in my opinion, would frustrate to a substantial degree the effectiveness of the legitimate cover which the parties should be taken to have intended. Damage caused by the escape of a hearth fire deliberately lit in the course of ordinary domestic use would not be covered. Neither would damage from a fire accidentally resulting from a deliberately lit candle or damage to the premises as a result of a deliberately driven car accidentally colliding with a building. The parties should not be taken to have intended that unintended consequences of ordinary and proper use of the insured premises or ordinary and proper activities carried out on them would be excluded from the cover provided by the policy.

    I consider that the act contemplated by the phrase 'deliberate and intentional act' is the act of causing the damage. There must be a deliberate or intentional causing of the damage to the insured premises.

    Generally speaking, to say that a person deliberately or intentionally causes damage imports that that person desires to cause that damage. Intention in law, however, is not equated with desire. There is an intentional act of causing damage when a person who has no desire to cause the damage, deliberately does so because of a desire to achieve some collateral purpose. Neither is intention equated with recklessness. The act of causing damage is reckless in contra distinction to deliberate or intentional where the person realises the risk that damage will probably result but proceeds irrespective of that risk.

    Although intention and recklessness are distinct states of mind and the latter is not within the policy exclusion, there is a point at which the risk of damage to the insured premises, as it exists and as it is realised by the insured to exist in consequence of the insured's actions is so high that the insured's state of mind, notwithstanding that the damage was not designed or planned by him, is indistinguishable from intention.

    It is difficult to formulate a satisfactory test for the determining when unplanned and undesigned damage is to be regarded as intentional. In the American cases cited above the test adopted is that the insured believes that the damage is 'substantially certain to result' from his actions and MacGillvray refers to embarking 'upon a course of conduct in which there was a clear risk of the loss occurring'. I do not think that the adoption of a precise formula would be useful. It must be a question for the tribunal of fact whether the risk, as realised by the insured, of the unplanned and undesigned damage was so high that his state of mind should be equated with intention because it amounted to imposing on the insurer a risk which it could not reasonably be thought to have intended to assume.

    I do not think on the evidence that the deceased's action in igniting the petrol fumes in the car give rise to an inference that he realised that the carport would be damaged still less that the fire would enter the house through the air-conditioning. I do not think that his action can be regarded as the deliberate or intentional causing of damage to the insured premises. I do not think that the 'deliberate and intentional act' exclusion applies to exclude the respondent's liability under the policy."

    The question of intention: finding

20. I am not satisfied that the defendant deliberately and intentionally drove her car at Mr Quici and that a collision occurred as a result of that intentional act. A collision occurred directly as a result of the method of driving of the defendant which was negligent. A very loud altercation had just occurred; its genesis was the issues concerning access to A that Mr Quici wished to discuss. This was an inappropriate time and place to have such a discussion, in the presence of the child. It is correct to say, as the plaintiff contends that, if she had chosen to do so, the defendant could have executed a U-turn to travel south from the point of the discussion. I reject the defendant’s contention to the contrary as well as her contention that she always intended to report matters (eg the alleged breach of the restraining order) to police. Although I do not have to finally decide the point I think that this possibility only arose in the mind of the defendant when, at the scene, she realised what she had done and reasoned (wrongly) that it would assist her position to make a complaint about Mr Quici sooner than later.

21. However, even taking into account those findings I am not satisfied that the plaintiff has discharged the onus upon it of satisfying one that the defendant deliberately drove her vehicle at Mr Quici and that a collision ensued. I am satisfied from the independent evidence of Mr Green that the defendant moved her vehicle into the south bound carriageway of Straud Street. She did so in a way that was otherwise unremarkable. He said that she moved her vehicle slowly although he thought that from his position there was some doubt whether he could fit her car in the space between the centre median strip and Mr Quici’s car. Even if this doubt was properly held, it would not justify a finding of intention. This is the case even though I do not accept the defendant’s version of fact about the collision and subsequent events.

    The question of reckless indifference

22. I turn then to the more difficult question of reckless indifference. The decided cases relating to the determination of what conduct is sufficient to amount to reckless indifference generally refer to the judgement of King CJ in Wright’s case and a number of other authorities.[75] Having regard to the decision of King CJ in Clayton’s case, it is necessary that two things be proved by the plaintiff. First that act of driving by the defendant created some obvious risk that there would be collision between her vehicle and Mr Quici. Second that the defendant has gone on driving the vehicle in that fashion without having given any thought to the possibility that there was such a risk or has recognised that there was such risk and has gone ahead and driven in that manner in any event.

    [75]   Tinline v Whitecross Insurance Associated Ltd [1921] 3 KB 327; Thompson v Copeland [1936] SASR 45; Kane v Dureau [1911] VLR 293; R v Conventary (1938) 59 CLR 633; Tziavrangos v Hays (1991) 55 SASR 416; Durward v Harding (1993) 61 SASR 283.

23. Consistent with the decision of the Full Court in Wright, reckless indifference must mean more than mere carelessness or negligence because in Wright, the court at first instance and the court of appeal were only satisfied that Mr Wright acted carelessly or negligently (both may be considered the same thing in that case).

24. In my opinion, there is no doubt that the defendant drove in a careless and negligent manner and that this conduct was the cause of the collision. I have formed the very clear view that the defendant knew that the collision had occurred at the scene, her attendance at the Port Adelaide Police station was a panicked reaction and an attempt to save face and that her alleged ignorance of the injury to Mr Quici (as she told the police) borders on the disingenuous. On the question of reckless indifference, at one level it may be said that the defendant proceeded whilst being indifferent to the position of Mr Quici. This is because I find that she moved her vehicle forward into a space that, objectively assessed, was either too narrow for her car to pass, or that was so narrow and because of her own lack of skills as a driver, she was incapable of driving through safely. The important issue is that the defendant appears to have given no thought to the possibility of a collision with Mr Quici. She was not attempting to perform a ‘U-turn’ at that time, she always intended to drive in a southerly direction along Straud Street.

1. In Dreezer v Duvnjak[76] Zeeman J said:

   … Australian authorities take approaches which have an underlying common feature, namely that recklessness is doing an act while contemplating the chance of it having the relevant consequence or quality with indifference to that consequence or quality.

   [76] (1996) 6 TasR 294 at [300].

2. In Compostella Judge Kitchen at [62], after referring to Zeeeman J in Dreezer, said as follows:

   In my opinion that passage reflects the meaning of the phrase “reckless indifference” in s124A(1)(aa) of the Motor Vehicles Act; that is I must be satisfied the defendant contemplated there was a probability “a substantial risk (Boughey v R (1986) 161 CLR 10 at 22) of bodily injury where (he) to drive (in that fashion) but (he) nonetheless went on to do that.

3. Applying Briginshaw, I am very far from being satisfied that the defendant had any regard for Mr Quici and his position on the day in question. So much is self evident from the fact that she executed the driving manoeuvre and immediately struck Mr Quici. The important feature is that Mr Quici was standing with his back to the drivers’ side of his vehicle (adjacent the rear wheel arch) when he was struck. Less than a body width space was left between the two vehicles. Of itself that fact is not determinative but the position is very different when a person is standing between the two cars. The dynamic of the need for and the application of proper judgement changes quite considerably in those circumstances. I am satisfied that the defendant gave no consideration to the presence of Mr Quici on the roadway at the time she drove her vehicle. That finding is plainly open on the evidence for the reasons that I have set out. It is not appropriate that I postulate that if the defendant had proper regard for the presence of Mr Quici the collision would not have occurred although that is ordinarily a valid form of a priori reasoning. Rather, my view is that the collision of the defendant’s vehicle with Mr Quici is, ipso facto, demonstrative of the failures of the defendant.

4. It is not possible to say that the collision with Mr Quici is a matter that should have been in the contemplation of the defendant. On the facts as I have found them, the presence of Mr Quici on the roadway was known by the defendant. I find that she had Mr Quici in her contemplation at the time that she commenced to move her vehicle but her state of mind was affected by the upset, fear and nervousness that she was experiencing as a result of the inappropriate behaviour of Mr Quici. Her mindset was to remove herself from a very difficult situation created by Mr Quici.

5. At the time, the defendant felt the urgent need to get away from that situation and to free herself from the conduct of Mr Quici which would have distressed her. This would have been compounded by the fact that she had returned from overseas the previous day. I have taken all these matters into consideration. In my opinion, when assessing the behaviour of the defendant, some regard must be had to the intensely private issues that may affect a persons’ judgement in a case such as this. That range of issues includes intense fear, nervousness and even anger, that objectively assessed would have significantly affected the judgement of a driver. This is so even if there are reasonable alternatives to proceeding in one direction to be taken into account where, as here, the defendant could easily and simply executed a U-turn with or without reversing, to head back down Straud Street or into Sixth Avenue.

6. I think that the law as it stands would not take into account any particular idiosyncratic features of a driver when making the assessment. The reason is fairly obvious: any driver could claim a reason affecting the driver’s subjective contemplation which should then be taken into account in the objective assessment of what is required (to be in the contemplation of the defendant). I cannot think that the assessment of the necessity of the contemplation is an entirely subjective exercise. Rather I am of the view that, once it is decided that Mr Quici stood in the roadway adjacent to the vehicle, then immediately from the time that the defendant moved her vehicle into that roadway, she had Mr Quici in her contemplation. That said, I am not satisfied that when she moved her vehicle the defendant contemplated that there was a substantial risk of bodily injury to Mr Quici when she moved her vehicle into the carriageway of Straud Street to travel southwards. This is my view even though it may be said that, objectively assessed, the space that was left on Straud Street was narrow she may not have been able to control her vehicle properly and skilfully in that space and there was a risk of injury to Mr Quici (if she drove in that fashion).

7. The defendant proceeded to drive into that carriageway but not in any a way that was identifiably deliberately directed at Mr Quici or in any way that suggests that she contemplated a probability of bodily injury to Mr Quici but she nonetheless proceeded. At the time the defendant was burdened in the way I have described: with fear, trepidation and anticipation of difficulty associated with Mr Quici’s behaviour. These circumstances were serious, burdensome and to an extent were debilitating for the defendant. They had such an impact upon the defendant that her whole aim at the time was to remove herself from that situation. Her conduct did not amount to driving recklessly for the purpose of s124A(1)(aa) of the Motor Vehicles Act. For these reasons I find for the defendant and I dismiss the plaintiff’s claim. I will hear the parties on the question of costs and any consequential orders.