Neeson v Lawler
[2015] WADC 160
•22 DECEMBER 2015
NEESON -v- LAWLER [2015] WADC 160
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 160 | |
| Case No: | ESP CIV:1/2010 | 2 NOVEMBER 2015 | |
| Coram: | O'NEAL DCJ | 22/12/15 | |
| PERTH | |||
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed | ||
| PDF Version |
| Parties: | JAMES GREGORY NEESON PHILIP MICHAEL LAWLER |
Catchwords: | Negligence Breach of duty of care Intoxication and contributory negligence Turns on own facts |
Legislation: | Civil Liability Act 2002 s 5L |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVL
- Plaintiff
AND
PHILIP MICHAEL LAWLER
Defendant
Catchwords:
Negligence - Breach of duty of care - Intoxication and contributory negligence - Turns on own facts
Legislation:
Civil Liability Act 2002 s 5L
Result:
Action dismissed
Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr T J Hammond
Solicitors:
Plaintiff : Moss & Co
Defendant : John McKenna
Case(s) referred to in judgment(s):
Nil
1 O'NEAL DCJ: This is a claim for damages for personal injury, said to be caused by the negligence of the defendant.
2 Late on the evening of 30 August 2007 the plaintiff was a passenger in a taxi driven by the defendant. The defendant picked the plaintiff up from the Pier Hotel in Esperance and accepted a fare to drive him to his home at Unit 1, 2 Dalyup Drive in Esperance. They arrived at Dalyup Drive at some time between 9.30 to 10.30 that night.
3 It is alleged in the statement of claim that there was a disagreement between the plaintiff and the defendant about the fare to be paid. It is further alleged that, while the plaintiff was leaning on the back window frame of the left passenger side of the taxi, talking to the defendant after paying the fare, the defendant reversed the taxi out of the driveway, hitting the plaintiff with the taxi door.
4 The particulars in the statement of claim allege that the plaintiff was thrown 4 m from the force of being struck by the taxi and hit his head on the driveway of 2 Dalyup Drive. As a consequence of hitting his head, the plaintiff is said to have suffered a subdural haematoma, fracture of one of the bones of the skull, and post-traumatic amnesia.
5 On behalf of the defendant, it has been pleaded that the plaintiff was not in fact injured in the manner alleged. The defendant denies that there was any 'altercation' with the plaintiff, or that he reversed the taxi while the plaintiff was leaning on it, or that he reversed the taxi while the plaintiff was leaning on it and struck the plaintiff with the taxi. Rather, it is said the plaintiff fell on the sloping driveway as he walked around the rear of the taxi.
6 As an alternative to the flat denial of the manner of the injury alleged by the plaintiff, the defendant says, at par 10 of the defence:
If the accident occurred as pleaded by the plaintiff (which is denied) or at all, the accident was caused, or alternatively, contributed to by, pursuant to section 5L of the Civil Liability Act 2002, the negligence of the plaintiff who was negligent in that he:
(a) Failed to take care for his own safety while in the vicinity of the taxi;
(b) Became so intoxicated as to be unsteady on his feet.
7 The matter has come before me for decision with respect to the issue of liability alone. The resolution of this issue depends entirely on the assessment of the credibility and reliability of the evidence of the various witnesses. It will be necessary to refer to that evidence in some detail in order to explain the conclusions that I have reached. I will refer to the evidence given by the defendant first.
Evidence for the defendant
8 The defendant was employed as a taxi driver in Esperance for about four years between 2003 and 2007. He remembered in some detail an incident involving the plaintiff that occurred about early September 2007. He said that about four or five weeks after this incident, he was contacted by the police, and was told that there was some complaint about the matter. In September 2008, having waived any right against self-incrimination, he gave a video record of interview to police about the matter.
9 Before me, the defendant said that he recalled the incident 'clear as a bell'. That was despite the fact that while he was driving taxi he was averaging about 160 trips a week for four years. The plaintiff was frequently a passenger in the defendant's taxi. They knew each other by name.
10 The defendant recalled a particular evening where he picked the plaintiff up, 'probably at the pub, probably at the Pier Hotel'. As the defendant said, he had picked the plaintiff up 'plenty of times' from home to take him to the pub and, it appeared, from the pub to his home. Sometimes he would take the plaintiff to another residential address on Coleman Street. Although he recalled driving the plaintiff on a number of occasions he said 'I can never recall picking him up sober except if I picked him up from Coleman Street or at his home, he may have been sober then but I always took him to the hotel'.
11 The defendant remembered this occasion in particular although it had much in common with other times that he had taken the plaintiff home. He remembered arriving at the units and going up the driveway part way before stopping. The driveway rises noticeably from the roadway. The defendant said that he pulled up, stopped, pulled the handbrake on and put the taxi in park. His evidence was to the effect that that was a regular routine of his, done conscientiously for safety purposes, and he did it on this occasion.
12 As usual, the defendant said, the plaintiff was affected by alcohol and he took a long time to pay because he was fumbling and finding his money. He observed that the plaintiff's speech was slurred and that the plaintiff had what was described as a sort of 'grumpy attitude'. The defendant said that was commonly the case with the plaintiff.
13 The defendant's evidence was that he believed there was at least one other passenger besides the plaintiff, and he thought that that passenger had sat behind the driver's seat. By the time the plaintiff came to pay however the defendant said that the plaintiff was the only passenger in the taxi and that he was sitting in the left rear seat.
14 The defendant said that on these occasions it ordinarily took the plaintiff about four times longer than an ordinary person to pay, and that there was frequently a quibble or a complaint about the fare. Finally, the defendant said, 'I got the money'. While the defendant put the money in his bag or on the console, the plaintiff got out of the vehicle. He said that the vehicle at that stage was 'fully parked and the handbrake on'. It was not moving.
15 The defendant said that he then sat and waited because he expected the plaintiff to walk past him to go into his unit. The defendant said that he was conscious of the safety issue, and waited for that reason. He said, '… I waited and I looked and I couldn't see the man and I waited and he hadn't walked past me'. By a gesture as he gave evidence, he looked over his left shoulder where he had expected to see the plaintiff and he said,
And time's going on and I'm waiting and I look and I can't see him. … He wasn't behind me.
… And so for the first time in the four years that I was driving a cab, for the purpose of the safety issue, I got out of that car. I took the seatbelt off, I got out and I walked around the back and there he is lying flat behind the car. … on his back.
16 It was this he said that made the event memorable.
17 The defendant said that he saw the plaintiff lying across the path of the rear left hand tyre with his head towards the centre of the vehicle. He said that if his vehicle had reversed it would have gone over the plaintiff's stomach. He recalled his reaction as 'Oh my God', and then running straight past the driver's side to get help from the units. He said that he didn't want to touch the plaintiff because 'things can happen'. He said he ran straight to the unit where he knew 'the other guy' had gone and tapped on the door to get the attention of the people there. He said,
They were kind of half-reluctant to come out and I said,
Excuse me, the gentleman's had a fall. Would you please come help move him? … So the guy – I don't know who he is or was, he reluctantly came out, you know, and he then assisted me in moving Jim away from the line of the tyre of the car … And I think I went and finished closing the door, I couldn't swear on that but I – I'm not sure and then I just drove away. Completely forgot about the incident and went on with my work. I didn't mention it to anybody because it didn't seem to be worth, you know, mentioning about.
18 Cross-examination of the defendant focussed on a discrepancy between the first statements that he gave about these matters and his evidence in court. With one arguable exception, that was the only challenge to the defendant's evidence.
19 The first recorded statements of the defendant, to the police in 2008 and then to an insurance investigator in 2009, said that the plaintiff was the only passenger in the taxi.
20 A copy of the defendant's video recorded interview with police and a transcript of that interview were obtained by summons. Excerpts from both the transcript and then, for reasons not entirely clear, the DVD recording itself were put to the defendant.
21 This portion both of the transcript and the DVD recording was said to have significance,
So I was probably sitting there for a while and I always put the handbrake on. In fact the handbrake had to be repaired because I was putting it on – it's just my thing. I put it in park and put on the handbrake and then I know the vehicle is secure. I notice some of the drivers don't worry about the handbrake but that's just my thing. And finally he paid me. I'm pretty certain he was alone. If someone else got out, no, he was on his own. And then finally he paid me and that took a while and then he got out.
22 The defendant accepted that he had said that to the police and that answer was true to the best of his recollection at the time. He accepted that it was only a few years ago, when being questioned by the insurer's legal representatives about these matters, that he began to question the accuracy of his recollection as to the number of passengers on that trip.
23 The defendant was not present in court on the morning when the plaintiff and his witnesses gave evidence. In cross-examination the defendant was asked to describe other people that he recalled from this incident. He said in cross-examination 'I believe there were two passengers from my memory'. In context, he was referring to the plaintiff plus one. He said that he did not know the other passenger in that, while he might have seen him previously, he could not put a name to him and did not know him. He agreed that this man was 35 to 40 and very short and he volunteered 'and much younger than Jim'. He was asked if this other man was Aboriginal and he said 'Yes, part-Aboriginal, I think'.
24 That description fits Mr Nebro, who gave evidence for the plaintiff.
25 The defendant was asked 'And you said there might have been a third passenger, is that correct?' To this the defendant answered – 'Look I wouldn't swear that there was only two. There may have been a third person, the person I spoke to when I tapped the door'.
26 The defendant maintained however that there was no-one in the car at the time that the plaintiff was paying and that to the best of his knowledge the other passenger or passengers had by that time gone to one of the units in the small complex where the plaintiff lived. He said that when he went to get help 'One person came out of the unit'. The defendant said that he was not familiar with that person and he described him as ' … a younger man to my recollection, part-Aboriginal, dark hair, darkish skin, probably late 20s, maybe early 30s, just a guess, sort of stocky, I suppose …'.
27 The defendant did not accept that this third man could have been as young as 17 or 18. He believed that the person was maybe '30-ish or a little bit more, maybe something like that'.
28 I note that the description provided by the defendant is a reasonable description of Mr Lyon, another witness for the plaintiff. The age attributed to the third man by the defendant would easily fit Mr Lyon now. It cannot be said that he has a youthful appearance.
29 Ultimately the defendant agreed that this third man probably was one of the passengers but, 'In any case he was at that unit where Jim was going'.
30 He was asked where the other passenger or passengers got out and the defendant said,
I couldn't swear there was more than one but there could've been one behind me and he'd have got out and closed the door, and left Jim to pay, which was typical. So he left and gone inside (sic). There may have been another one sitting next to me and he'd probably closed the door and gone but the key to my memory is that I'm waiting to be paid – waiting to be paid and the incident happened after that'.
31 In cross-examination the defendant was given an opportunity to explain why he did not previously mention any passenger other than the plaintiff. He said,
The focus of this investigation or my interview was all about the fact that Mr Neeson had been injured in some way in this incident. The focus was on Neeson, where he was and such and so. There was no – there was no speak or talk about other people being in the vehicle and there's no relevance of those people, if they were in the vehicle or not, it's all about whether Neeson did fall over or did not fall over, etcetera.
32 He was given a further opportunity in cross examination when he was asked 'why didn't it occur to you to tell the police that there was more than one passenger?' He answered 'I didn't recall. I thought the clear question of me was about an incident regarding injury to this man, Jim Neeson'.
33 Later when being asked about his request for help he was asked this question, 'Why didn't you tell the other passenger or passengers to help move him because they would've still been there, wouldn't they?' In light of the defendant's previous evidence, this question assumed a disputed fact, but to this the defendant answered, 'There was no-one at the car at this moment in time … To the best of my knowledge they went to the unit. … One person came out of the unit'.
34 Apart from highlighting the inconsistency about the number of passengers who made the trip from the pub, there was one other arguable challenge to the defendant's evidence. After getting the defendant to confirm his evidence about the usual grumpiness of the plaintiff's manner and his slowness in paying when intoxicated, the plaintiff's counsel asked the defendant
And could it have been that on this occasion you just … one too many of those episodes and you reversed up while he was still getting out of the vehicle?
35 To this the defendant answered,
I did not reverse that vehicle.
36 The exchange continued,
I'll take that as a no, is that right? --- No, I did not.
You sure that didn't happen? --- I stand by my statement under oath.
Evidence for the plaintiff
37 The plaintiff gave evidence before me that on an evening in September 2007 he went to the pub with two friends. The friends were Ray Nebro and Mr Nebro's nephew BJ Lyon. The plaintiff said that they were at the pub for one and a half to two hours, and in that time he had four middies of Carlton Mid Strength. They played pool. They purchased a block of beer he said, and then rang for a cab.
38 The plaintiff recognised the taxi driver as the defendant because as the plaintiff said, 'he's taken me home a few times'.
39 The plaintiff said that BJ Lyon got in the front passenger seat, Mr Nebro got in the left rear passenger seat and the plaintiff sat behind the driver. In the course of his evidence-in-chief however the plaintiff was at one point hesitant about who was in the taxi.
40 The taxi pulled up in front of the units where the plaintiff lived. The mother of Mr Nebro, the grandmother of Mr Lyon, lived in Unit 2 next door. Mr Nebro and Mr Lyon were staying with her at the time.
41 The plaintiff described how BJ Lyon got out of the taxi and Ray handed him the carton. He said that Ray had got out of the left rear passenger door and he the plaintiff shifted over to the left side to pay for the cab ride. He described a disagreement with the taxi driver where after the plaintiff had given him $10 the taxi driver said, 'You haven't paid me' and the plaintiff accused the taxi driver of 'double dipping'.
42 The plaintiff said that this argument continued as he got out of the taxi and he was 'just sort of out' when, as he held onto the left rear door of the car, the taxi driver reversed and knocked him down.
43 In opening his case and outlining the evidence for the plaintiff, counsel for the plaintiff told me that while one witness for the plaintiff would say that the plaintiff was struck by the left rear door, the evidence of the plaintiff would be that he was struck by the right rear door. The change of sides when the plaintiff came to give evidence about the door that struck him was never explained. The probable inference is that counsel was in fact instructed as he outlined in opening and the plaintiff changed his evidence. The evidence changed to coincide with that of Mr Nebro.
44 Based on the cross-examination of the plaintiff and contemporaneous documents that are available, it is more than doubtful that the plaintiff is right about the date of the accident. It is also now clear that the plaintiff has no true recollection of the accident and has relied on what he has been told by others.
45 In his evidence-in-chief the plaintiff said that when he was knocked down 'I didn't wake up'. In his cross-examination he described how within a short time after the accident, the next day or so, he was taken to hospital by ambulance. Records from Esperance Hospital admitted pursuant to s 79C of the Evidence Act 1906 show that in fact the plaintiff took himself to hospital on Sunday, 2 September 2007, complaining of an incident involving a taxi 'Thursday night'. Other records show that on 14 September of that year he was taken to Esperance Hospital by ambulance. The records of that admission show that a date of 3 September was given for the accident. It was this admission that led to the plaintiff being brought to Royal Perth Hospital.
46 The 'Patient Care record' for the plaintiff for 14 September 2007, maintained by the ambulance service was tendered pursuant to s 79C of the Evidence Act. It records that at 5:40 PM a request was received for an ambulance. It was dispatched five minutes later. At ten minutes past six the plaintiff was taken from his house and he arrived at hospital at 6:20 PM. The notes record as a history that 'patient states 3 full strength beers last 4/24. (Possibly incorrect amount stated).' Later, under 'comments', someone has recorded the plaintiff's description of past and current health issues and 'patient has had nothing to eat all day; no water'.
47 The plaintiff reported an accident to police on 22 October, 2007. At that time he told the police that the accident had occurred on 6 September. The description provided to police in the report he signed is as follows,
Dropped off approx 10:30 pm at unit 1/2 Dalyup Drive – door was open (passenger front). He reversed back and hit me approx 15 feet & struck my head on driveway pavement – flown by RFDS on 18/9/07 – from Esperance Hospital to RPH Emergency operation (bleeding of the brain and blood clots removed).
48 The sketch that is included shows a stick figure of the plaintiff lying prone on the driveway more than a car length behind the taxi with the note 'after being hit'.
49 The plaintiff has not given a consistent account of who travelled with him in the taxi, and who arrived at Dalyup Drive with him. Statements that the plaintiff has given over the years to the police and to his solicitors have at various times had Mr Lyon in the taxi or out of it and in his place, for at least part of the trip, a man named Mervyn Williams.
50 A letter dated 23 July 2012 from the plaintiff's solicitors to the defendant's solicitors robustly asserted that, contrary to any previous suggestion, BJ Lyon was not in the taxi that took the plaintiff home,
My client further states that when he gave first statement (sic) to the police on 9 November 2007, inadvertently, he referred to a person by the name 'BJ', when in fact, his name was Wayne Williams.
There was no person 'named BJ' in the car that night. BJ is the nephew of Raymond Nebro (statement provided before) who was residing at unit 2, Dalyup Drive, Dalyup Esperance. After the accident, both Raymond Nebro and his nephew BJ picked up my client from his driveway (who was almost unconscious) and accompanied him to Esperance Hospital.
I am in the process of obtaining a statement from Wayne Williams who lives in Esperance.
My client disputes that he was the front passenger in the taxi as disclosed in the police subpoena material. Wayne Williams was the front seat passenger and my client was behind Wayne in the backseat.
Raymond Nebro was on the run as stated in subpoenas – running sheet of the police until 26 February 2008.
51 What is interesting about this letter is that it was seemingly written at a time when the plaintiff's solicitors had considerable material about the accident and had already interviewed Mr Nebro.
52 In the course of his cross-examination, the plaintiff agreed that his evidence about how the accident happened was based on what 'Ray and Billy Lyon' told him and that he had no independent memory of it himself. He said that, as suggested in one of his earlier statements, 'they' told him what had happened after the plaintiff came out of hospital. While relatively gentle cross-examination brought this revelation, the plaintiff's evidence actually began to come unstitched in his examination-in-chief.
53 Early in examination- in-chief he was asked who he had gone to the pub with. He said 'Ray Nebro and Billy Lyon'. Later in examination-in-chief he was asked of the cab ride, 'What if anything happened on the way home?' To this he answered, 'We dropped - hang on here. Yeah. I thought that Wayne was with us, but it was BJ.' The question was repeated and this time the plaintiff said, 'Look, this - this part here, I'm a bit scrambled in my head with this one here because I don't know whether it was Wayne or BJ. Well, it was – BJ was in the front there, sir, and come to think of it, someone said Wayne wasn't even with us.'
54 I should observe that the plaintiff seemed quite guileless while giving this evidence. It seemed apparent that he saw nothing wrong with giving sworn evidence of matters that he had no real memory of, when encouraged to give evidence contrary to even the limited memory he had. This it seems escaped the notice of his legal representatives, who put him forward as a creditworthy witness, if potentially unreliable as to peripheral details. There was this exchange in re-examination.
55 In cross-examination after describing how 'only Ray and Billy Lyon' had told him about how the accident happened after the plaintiff had come back from hospital in Perth, he was asked, 'because you don't have your own memory what happened, do you?---No, I did not know what was happening, sir'.
56 These questions were asked and answers received in re-examination with respect to the evidence that he had no memory of the accident.
That you had no memory and you said yes. What did you mean by that?---Things just you know, a little bit scrambled in my head there, sir. I just don't remember very much you know, and - - -
Do you remember that night at all?---Say, sir?
Do you remember that night at all? What happened that night?---I do remember that and after that everything's just not right after that, sir.
Before Mr Hammond stood up and asked you questions, what you told me when I was asking you questions, do you remember all of that, part of that? All of it or part of it?
57 At this stage the complexity of this question was pointed out and counsel resumed,
Well, do you – do you remember what happened that night?---I do remember what happened that night because I was – that night because I was as good as gold and after the accident, sir, it's just all blank, sir.
Ray Nebro
58 Given that Mr Nebro was a source of the plaintiff's information about these matters it was not surprising that, when Mr Nebro came to give evidence, much of his evidence was remarkably consistent with what the plaintiff had said. Mr Nebro also described the earlier trip to the Pier Hotel, the four middies of beer, and playing pool before a taxi was called. Mr Nebro also recognised the driver as the defendant. Mr Nebro said that it was the three of them, the plaintiff, himself and his nephew BJ who got into the taxi and that 'Billy' sat in the front seat.
59 Mr Nebro described an accident in these terms:
When the taxi pulled up BJ got out – I passed a carton of beer to him from the back seat and asked him to take it to the front door. I got out and left my front door open. Jim paid. I was standing near the door on the left hand side and Jim decided to get out. The taxi driver got a bit upset and Jim said 'I gave you $20 you should give me change'. Jim had one foot out and the taxi driver decided to reverse out with the door open.
60 The force of the acceleration in reverse, Mr Nebro said, knocked Jim back on the driveway, 'I was standing near the back door on the kerb and saw it.' It knocked him he said, 'back down the driveway to the entrance of the driveway'.
61 I have referred to the police report filed by the plaintiff in October 2007, which includes a sketch of the accident 'after being hit'. Particulars in the statement of claim allege that the plaintiff was thrown 4 m before hitting his head. Consistently with that allegation and Mr Nebro's evidence, the sketch in the police report shows the plaintiff lying at least a full car length down the driveway from where he was first struck, with his head down the driveway away from the back of the taxi.
62 Mr Nebro said that after that occurred he went around to pick Jim up from where the taxi had sent him. Mr Nebro said 'I stood there and asked the taxi driver to stop or he'd run Jim over'. He said that BJ came to help with Jim when he asked him to come and assist. He said they took Jim to his place, he lay down and they 'called it a night', not realising 'how sick' Jim was.
63 In cross-examination it was suggested to Mr Nebro that, according to a statement that the plaintiff had given, that when the taxi arrived and came to a stop in the driveway that Mr Nebro got out straight away to go to the toilet. That is, there is evidence before me that in a statement signed by the plaintiff in November 2009 he said that after the taxi had pulled into the driveway 'Ray got out straightaway. He wanted to go to the toilet'. Mr Nebro denied that to be the case saying that 'the door was still locked', presumably meaning the door to either or both of the plaintiff's unit and his mother's unit.
64 While there was no evidence of a reason for a hasty exit by Mr Nebro, the defendant gave evidence of the quick exit by the passenger or passengers, leaving the plaintiff to pay the fare.
65 There was also evidence of a quick exit by BJ Lyon, from his grandmother.
Yvonne Adams
66 A written statement provided by Yvonne Gail Adams, the mother of Mr Nebro and the grandmother of BJ Lyon, was tendered in evidence at trial on behalf of the plaintiff, pursuant to s 79C of the Evidence Act. The statement was dated 16 October 2014. Unfortunately Ms Adams died not long after making the statement and prior to her 61st birthday. The statement was made more than seven years after the incident that is the subject of this action.
67 In the statement Ms Adams said that she saw Jim almost every day and they spent time together as neighbours. She recalled 'Jim, Raymond and Billy' all going to the Pier Hotel and coming back together 'on the night when the incident took place (I do not remember the exact date)'. Ms Adams said, 'Billy went straight into my unit to go to the toilet. I look outside and saw Jim was on the ground on the side passenger [sic]. There was enough light to see. I saw the taxi reversing and going away'.
68 Ms Adams described some things that Mr Nebro told her and she said that:
'My grandson Billy and Ray picked Jim up and put Jim into his unit. I got the keys off Jim and put him in his bed. Jim was drunk but not very heavily drunk. I know how Jim drinks. Jim drinks but I've never seen him out of control after drinking living next to me.
69 Ms Adams also says in her statement that it was the very next day when the plaintiff was taken by ambulance to Esperance District Hospital and then to Royal Perth Hospital.
70 Like his mother, Mr Nebro was also adamant that the day after this accident the plaintiff was 'packed away in an ambulance'. He insisted that was the case because he said his mother had checked on the plaintiff and found him delirious and she called an ambulance.
71 It is difficult to give a great deal of weight to specific observations or claimed observations of events that occurred seven years before the statement was made. Ms Adams' statement about the timing of the trip to hospital in an ambulance is contrary to facts that can be established by contemporaneous documents. Given the role taken by Mr Nebro with respect to the plaintiff's evidence, it seems dangerous to me to ascribe too much in the way of reliability to what Ms Adams says about the circumstances of the accident. There are of course her more general observations about the plaintiff's drinking and what she says about her grandson's movements prior to the plaintiff being carried from the driveway.
BJ Lyon
72 Mr Nebro's nephew, Billy James Lyon, was called to give evidence for the plaintiff. He said that prior to going to the Pier Hotel they had been at Jim's. He said that he himself had not been drinking at the hotel as he had been refused service because he was underage. After some time they called a taxi, went to the drive-in to pick up a carton of Export beer, and then had the taxi driver take them to Jim's home.
73 Mr Lyon said that he was sitting in the left rear side with his uncle sitting to his right. Jim, he said, was sitting in the left front passenger seat in front of him.
74 Mr Lyon said that when they arrived back at Dalyup Drive he got out of the taxi, carried the block of beer and put it on the verge near Unit 1. He said then, 'My instincts kicked in'. He was asked 'Why?' and he continued,
That I heard – I had a – I sort of turned around just in favour of instincts and saw the taxi hit Jim. He falled to the ground.
75 Mr Lyons was asked what happened after that and he said,
Well, I knew the consequences of handling the situation so I picked him up and took him inside after that.
76 Mr Lyon was asked how far he was from the front of the taxi and he said he was 'four-three metres, two metres' from the front of the taxi. This was subsequently corrected to three, and then three and a half metres.
77 He was asked to describe what he saw. He said he saw the front door on the left side 'sort of swing' and Jim kind of 'bob down and fall under'. He was asked what the taxi was doing at this time and he said 'it was in the same position as it was, and then it kind of reversed back, and then went forward and then drove down the driveway and took off.' The taxi he said 'was just slowly creeping out of the driveway forward'. Mr Lyon said that he heard wailing and yelling and he 'didn't really see where my uncle was but he was kind of at the back of the taxi just ready to sort of …' and his uncle nearly got hit himself. He said that he and his uncle then picked the plaintiff up and carried him into his unit.
78 Mr Lyon and Mr Nebro were staying with Mr Nebro's mother, Yvonne. I have referred to the statement from her that was received in evidence. Her observation that when the three men arrived home in the taxi her grandson came straight into the house to use the toilet, was put to Mr Lyon in cross-examination. His answer to this was 'Yeah that's true, yeah'. As the cross-examiner prepared to ask the next question, there was this exchange, 'So - - -?---No, that's not true.' Mr Lyon then volunteered that his grandmother was watching from her door, but his attempt to explain this conflict was not convincing. He insisted however that he was not inside his grandmother's unit when the incident occurred.
Analysis
79 Counsel for the plaintiff asks me to reject the evidence of the defendant on the basis that there was an inconsistency between the defendant's earlier statements and his testimony in court about the total number of passengers in the taxi prior to the incident. That was described by counsel for the defendant as a 'fundamental inconsistency'. The inconsistency was characterised as 'a beauty'. Given the relative insignificance of this issue compared with the many and varied inconsistencies in the evidence put forward on behalf of the plaintiff, this is in many ways a courageous submission.
80 The second reason I was given for rejecting the evidence of the defendant is that the contest was one between the evidence of the defendant, a single witness, versus two witnesses for the plaintiff, BJ Lyon and Mr Nebro who 'gave evidence in as forthright a manner as they could and they were consistent on the fundaments of the case'.
81 The submission was in effect that I could reject all of the defendant's evidence because of the highlighted inconsistency on the basis that, 'there's a range of states of mind between mistaken and out and out lying to the court'.
82 In any event I was told, 'this isn't a case about whether you disbelieve the defendant. This is a case where we've got two witnesses for the plaintiff's case to support his case'. The significance of the evidence of those two witnesses was, I was told, 'Nebro saw the collision. Lyon saw the aftermath. And it's wholly inconsistent with what the defendant says…'.
83 There is no doubt that the defendant's evidence is completely contrary to the versions of events put forward for the plaintiff. How exactly that was to be reconciled on the basis that the defendant was perhaps mistaken or confused as opposed to not telling the truth, that is, lying, was not something on which counsel for the plaintiff wished to be engaged. It is difficult to see how the detailed version of events given by the defendant which he has (with the exception of the one inconsistency referred to) been giving consistently since at least 2008 could arise from mistake or confusion. It is difficult to see how the defendant could have forgotten that he recklessly knocked the plaintiff over with his taxi, with false memory providing a detailed, coherent, and consistent but untruthful version of events.
84 Counsel for the plaintiff invited me to use my assessment of the demeanour of the witnesses which it was said, 'ought not to be rated as secondary in cases like this where there's just a factual conflict and that the route home for the plaintiff might simply be to say that your Honour ought to believe Nebro and Lyon on the fundament [sic]'.
85 While the questions asked of the defendant in cross-examination went over and over the inconsistency about the number of passengers on the trip from the pub, it was never put to the defendant that he had not given truthful evidence. Counsel for the defendant was unwilling to advance argument as to whether I should reject the defendant's evidence as dishonest as opposed to merely unreliable. The difficulty here is that it is exactly the kind of case where at least one side is not giving truthful evidence.
86 Nor, as will become clear, was assistance offered as to the manner in which I was to reconcile the numerous inconsistencies in the evidence for the plaintiff. There was in fact little in the way of argument, in the sense of factual propositions underpinned by accurate references to the evidence, pointing towards a conclusion that the defendant drove without reasonable care for the safety of the plaintiff.
87 The plaintiff's evidence about the events following his taxi ride is of no assistance here because of his admitted lack of memory. It is useful however in assessing the credit and weight to be given to the evidence of other witnesses for the plaintiff, in particular Mr Nebro.
88 There are some significant concerns with respect to the evidence of BJ Lyon, quite apart from the fact that it is difficult to understand what he claims to have seen.
89 First there is the question of whether he was present with the other two at the pub. The defendant's evidence does not preclude that. But Mr Lyon has said that he was underage and while he was present at the pub he was therefore not drinking with the other two. Mr Lyon was born on Anzac Day 1988. In August 2007 he was not 'under age' to drink, he was 19 years old.
90 His recollection of the seating positions was at odds with the version of events given by his uncle. Nor was it possible to reconcile what Mr Lyon said he saw with Mr Nebro's evidence of sudden reverse acceleration, the plaintiff being struck by a back door and being thrown 'back down the driveway'.
91 Mr Lyon's evidence as to what he did on leaving the taxi was, with respect, unconvincing. It was heavily qualified until he reached the part where 'his instincts kicked in', when he appeared to be giving evidence by rote. Even on his evidence it is not apparent that he actually saw any collision between the taxi and the plaintiff. There is the troubling discrepancy between what his grandmother says he did and what he claims he did, or at least what he said when he reversed himself about his grandmother's observation.
92 That really leaves Mr Nebro. It is apparent, based on the evidence of the plaintiff, that Mr Nebro has told the plaintiff what it is that is supposed to have happened. Having observed both Mr Nebro and Mr BJ Lyon give evidence I have no doubt that Mr Nebro is the more forceful of the two personalities by a degree of magnitude. The plaintiff explicitly referred to Mr Nebro's assistance after the plaintiff's release from hospital. The plaintiff also accepted that both Mr Nebro and BJ Lyon have assisted the plaintiff with their version or versions of what was said to have happened.
93 There are inconsistencies in the evidence of Mr Nebro arising from other evidence put forward on behalf of the plaintiff, including the statement of Ms Adams, and the correspondence from the plaintiff's solicitors.
94 There is the implausibility of the events described by Mr Nebro including the manner of the accident and his subsequent reaction.
95 Counsel for the plaintiff invites me to give my observations of demeanour more weight than is now ordinarily fashionable. With respect, if I am to weigh subjective considerations of demeanour in the scale, the defendant presented as a far more credible witness than Mr Nebro and Mr Lyon.
96 I am also of the view that the accident described by Mr Nebro in his evidence, reflected it would seem in the statement of the plaintiff to police and in the particulars to the statement of claim, is odd to the point of being implausible. It relies on an acceptance of a version of events that has the defendant suddenly accelerating in reverse, with an open door and the dome light presumably still on, so that the plaintiff's situation of peril is obvious. It has the plaintiff being struck with sufficient force to punt him a distance down the driveway, with the defendant still driving in such an aggressive manner that he is prepared to continue backing up over the area where the plaintiff has fallen, where Mr Nebro was then standing, presumably with a passenger door still open. This is the conduct that I am asked to accept that led Mr Nebro and Mr Lyon to decide to simply 'call it a night' after the plaintiff had to be carried unconscious from the driveway.
97 When it comes to assessing the plausibility of the evidence given by the defendant, it at least has the virtue of simplicity and consistency with ordinary human experience. It has an internal consistency that gives it the ring of truth.
98 In assessing the demeanour of the defendant and the evidence given by him, I am not moved to place much significance on the fact that he could not remember exactly how many people he transported home from the pub that night. In the context of 160 trips on average per week for four years, in the context of what was significant about this particular trip, the number of passengers pales into insignificance. It was what happened to the plaintiff that was memorable.
99 The defendant is currently retired. He is however engaged in volunteer work. He is president of the Volunteer Drivers' Association for Sir Charles Gairdner Hospital. It seems unlikely that a man who would voluntarily do such work is also someone so impatient and aggressive as to recklessly knock over or run down a regular passenger because of a quibble about a fare.
100 The defendant's version of events is credible. Mr Nebro's is not.
101 There is a question as to how it is that on 2 September the plaintiff is able to walk into Esperance Hospital complaining of an incident where he 'got out of cab was knocked over'. His injuries were examined, and while complaining of headache, his condition is described as 'Alert - PEARL 3+ 3+- Graze top head temporal and occipital- walked into department unaided …' It is 12 days later before the plaintiff presents with an injury so serious as to require that he be taken by ambulance to hospital. I am satisfied that those witnesses who say that the day after the incident involving the defendant the plaintiff was taken by ambulance to hospital in Esperance and then on to Royal Perth Hospital, are wrong. Mr Nebro is wrong and, perhaps unsurprisingly, so is the statement provided by his mother seven years after the incident.
102 For all of these reasons, I am not able to accept that Mr Nebro gave either honest or reliable evidence about the matters in issue here. I have similar reservations about the evidence of Mr Lyon.
103 The evidence tendered on behalf of the plaintiff does not allow me to conclude that the plaintiff was injured in the manner alleged. I am not satisfied on the balance of probabilities that he was struck and knocked over by the defendant's taxi as it reversed. To the contrary, I accept the evidence of the defendant.
Contributory negligence- intoxication
104 I have referred to the allegation in the pleading that any accident was caused or alternatively contributed to by the negligence of the plaintiff. In particular that he was so intoxicated that he was unsteady on his feet. The defendant has pleaded and relied upon s 5L of the Civil Liability Act2002.
105 First, I will observe that I am easily satisfied on the balance of probabilities that when the plaintiff fell and suffered an injury it was because he was intoxicated and unsteady on his feet. There is abundant evidence that the plaintiff abused alcohol. I have referred to some of it but there are other references in the medical records that also lead to that conclusion.
106 Had I however been satisfied that the accident occurred in the manner claimed by the plaintiff (or Mr Nebro), I would not have attributed negligence to the plaintiff despite the fact that I am satisfied that he was intoxicated. First of all there is the question as to whether he was sufficiently intoxicated to fall within the definition set out in s 5L(4) of the Civil Liability Act. Second there is the question of causation.
107 It is difficult to say exactly what the extent of the plaintiff's intoxication was. Having found that it was his intoxication that caused him to fall, on that basis I would be satisfied that he was intoxicated to such an extent that his capacity to exercise reasonable care and skill was impaired.
108 If his intoxication did not in the first instance cause him to fall, if I had reached a different conclusion about that, the question of contribution would arise. However, the defendant accepted a fare from the plaintiff knowing that, as was frequently the case, the plaintiff was intoxicated. That then was the category of person that he was dealing with, in assessing the proper measure of his duty to take reasonable care. Had I been satisfied that the defendant had reversed his taxi with the rear door open, with the intoxicated plaintiff clinging to it, it would not in my view be fair to attribute any significant degree of contributory negligence of the plaintiff. In balancing the relative breaches of duty of the two parties, that of the defendant would have so vastly exceeded any negligence attributable to the plaintiff, as to diminish the plaintiff's share to nothing.
109 The action is dismissed.
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