Nielson v Willing - [2001] WADC 15

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NIELSON -v- WILLING [2001] WADC 15

CORAM: WILLIAMS DCJ

HEARD: 22 AND 23 JANUARY 2001

DELIVERED : 1 FEBRUARY 2001

FILE NO/S: CIV 2828 of 1999

BETWEEN: FREDERICK JOHN NIELSON
Plaintiff
AND
LINDA CAROLINE WILLING
Defendant

Catchwords:

Negligence - Road accident cases - Whether defendant negligent in wilfully and intentionally pushing plaintiff out of motor vehicle

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr T Offer
Defendant: Mr P Olivier

Solicitors:

Plaintiff: Friedman Lurie Singh
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Nil

WILLIAMS DCJ: On 14 March 1998 at approximately 5.30 pm the plaintiff was a passenger in a motor vehicle being driven by the defendant along Read Street, Rockingham. The plaintiff alleges that while the vehicle was travelling along the defendant pushed the plaintiff out of the motor vehicle thereby causing him injury.
The plaintiff says the defendant was negligent in wilfully and intentionally pushing the plaintiff out of the moving vehicle.
The defendant denies that she pushed the plaintiff out of the moving vehicle and says that the plaintiff opened the door and alighted from the moving vehicle and that she did not push him.
The plaintiff was born on 3 April 1950. At the time of the accident he was employed as a fire technician with Statewide Fire Services. Sometime before 14 February 1998 he formed a relationship with the defendant and on that date they became engaged to be married. By all accounts it was something of a stormy relationship.
At that time the defendant resided at 31 Biscayne Street, Safety Bay. Although the plaintiff and the defendant did not reside together it was the case that the plaintiff often stayed over at the defendant’s residence. The defendant was the owner of a Toyota Lite Ace beige van and the holder of a current motor driver's licence.
On the evening of 13 March 1998 the plaintiff was staying over at the defendant’s home. As a result of difficulties experienced that evening in respect to the defendant’s 15 year old daughter both the plaintiff and the defendant had a very interrupted night’s sleep.
On the morning of 14 March 1998 the plaintiff woke the defendant at about 8.30 am. The defendant was not happy with this and as a result an argument ensued and the plaintiff left in his vehicle. Sometime between 10.30 am (according to the defendant) and 11.30 am to 12.00 midday (according to the plaintiff) he turned up again. Matters had not improved and he left again.
The plaintiff then drove to Tom Madden's residence in Wattleup where he consumed alcohol. In evidence the plaintiff said four cans of Matilda Bay. In his statement to an investigator (Exhibit 3) he said about six and a bit cans of beer. In any event it is agreed that his blood alcohol reading at 8.21 pm that evening was .06. According to the plaintiff he left Madden's at about 4.30 pm and the accident occurred at approximately 5.30 pm. In his statement to the investigator the plaintiff said "I did not want to drive home and Tom did not want me to drive my car as I had been drinking. Tom offered me to stay (sic) and have a couple of hours sleep as well."
Although the plaintiff telephoned the defendant and requested the defendant to pick up the plaintiff, the defendant refused to pick the plaintiff up from Madden's place and the plaintiff arrived at the defendant’s residence according to the defendant at about 5.00 pm to 5.30 pm. After the defendant's refusal the plaintiff had requested the defendant's friend Dianne to pick him up. According to the defendant she could smell alcohol on his breath when he arrived. She was not happy to see him there as she had had a stressful night and had work to do. The plaintiff was told that he was not welcome.
The plaintiff decided to walk home. According to the plaintiff he walked for 20 minutes and then telephoned the defendant and asked her to pick him up. According to the defendant after receiving the plaintiff's telephone call and then after driving around looking for him she proceeded home. As she pulled up in the drive he was coming across Seabreeze Street which forms a T-junction with Biscayne Street. The plaintiff’s residence is one removed from the T-junction. That in my view accords with what the plaintiff said in his statement to the investigator "I was sitting on the grass near the kerb in the park when she pulled up. I think she pulled up in Seabreeze Street." I do not accept the plaintiff's evidence that he walked for 20 minutes.
According to the plaintiff he got into the front passenger seat of the Toyota Lite Ace and put his seatbelt on and the defendant drove off. As they were driving, the defendant started arguing with him for going to Madden's place and for asking her friend Dianne to pick him up. He was sitting there taking it. He then said he would ring Madden. The defendant picked up his mobile phone and threw it through the passenger’s window. He yelled at her to stop. He took off his seatbelt. He opened the passenger’s door slightly. He was looking back to see the mobile. The door was slightly open. He remembers nothing further until he woke up in Sir Charles Gairdner Hospital.
According to the defendant as she pulled up in the driveway of her residence he was crossing Seabreeze Street. He got into the front passenger’s seat of the Toyota Lite Ace. There are two bucket seats in the front. The plaintiff did not want to go home and she did not want him to stay. The defendant drove along Investigator Drive and turned left onto Read Street, which has dual lanes. She moved into the lane nearest the medium strip. Initially she went to move into the outside lane but then stayed in the lane nearest the medium strip. The plaintiff was saying that he wanted to walk home and she was telling him that she was going to drive him because "you put me through this bullshit."
She saw him throw the mobile phone out of the window. She saw the door open. She saw him get out of the vehicle. She did not touch him. He was not wearing a seatbelt. She put her foot on the brake and then accelerated and pulled over into a bus lane. She thought she was probably doing 40 kilometres per hour at the time the defendant left the vehicle.
Of the two versions as to how the accident occurred I much prefer the evidence of the defendant and for the following reasons:
1.In my view the plaintiff’s evidence was significantly different from his statement made to an investigator on 18 May 1998 (Exhibit 3). In respect to that statement he had great difficulty in the first place in accepting that it was his signature on the document and on the Notice of Intention to make a Claim (Exhibit 2). In his statement he said as follows:
"She drove off. I can’t say what route she took. She started to tell me off for drinking and for calling Diane.
We did not come to blows and there was no physical contact between either of us.
After she started to go off at me I said 'Stop the car and I’ll walk home'.
She said 'Well walk home then'.
I took my seat belt off, because I thought she was going to stop and let me out.
I did not know what road we were on and did not know which direction she was driving in.
I do not know what speed she was driving at.
After taking my seatbelt off I do not recall what happened after that and all I recall is waking up in SCGH two days later."
That statement makes no reference to the mobile phone being thrown from the vehicle by the defendant. In cross-examination the plaintiff said he took off his seat belt because he was not able to turn to see the mobile phone and that he did not think the defendant was going to stop. In his statement he says he took off the seat belt because he thought she was going to stop and let him out. The statement makes no reference to him opening the door. In cross-examination the defendant said that he undid his seat belt, opened the door and inclined to his left. All of those things would be necessary for him to set the score to assert that he was pushed from the vehicle. In his statement he makes no reference to opening the door or to inclining to his left.
The plaintiff denied in evidence that he had said "stop the car and I’ll walk home" and that he did not think that she was going to stop. That is significantly different from his statement to the investigator.
2.Furthermore the allegation that the defendant pushed the plaintiff out of the vehicle is inherently improbable in the circumstances. Although the defendant accepted that she was angry about the situation she was in the course of driving the plaintiff home and had no reason to push him out of the moving vehicle. The plaintiff weighed 89 kilos and was 5 feet 11 inches tall. The defendant weighed 44 kilos and was 5 feet 3 inches tall. It would require a lot of strength to remove the plaintiff from the vehicle in the circumstances he described. It would also probably cause the vehicle to move from a straight course. The evidence of the independent witness Mrs Harrison was to the effect that at the time the plaintiff came out of the vehicle it was travelling in a straight line.
3.I found the plaintiff’s evidence unsatisfactory generally. He did not remember Seabreeze Street despite referring to it in his statement to the investigator. He did not know of a park two houses away from the defendant’s residence although his statement to the investigator refers to "a big park near her place". I have already referred to his unsatisfactory evidence in relation to Exhibits 2 and 3.
Following the accident the plaintiff was admitted to hospital and it is common ground that he suffered a serious head and leg injury. He was initially seen in Casualty at the Rockingham Health Service at 6.15 pm. At that time he had a Glascow Coma score of 14 out of 15, which is almost normal. Dr Sofield expected that he would remain stable or improve. Counsel for the plaintiff accepted that the plaintiff could not know more about the facts of the accident at the time that he gave evidence than he did when he made his statement on 18 May 1998.
Following his accident the plaintiff lodged a Notice of Intention to make a Claim Form dated 19 April 1998 in which he described the circumstances of the accident as "fell from moving vehicle 60kph didn’t know I had fallen until I woke up in hospital."
The plaintiff’s former wife, Diane Bomholm, gave evidence that in April 1998 after the plaintiff came out of hospital she and their daughter, Chantelle, visited the plaintiff. The plaintiff told her that on the occasion of the accident he had been drinking at Madden's. He got in the defendant's vehicle. The defendant was driving because he had been drinking. He had an argument with Linda and opened the door and stepped out. That accords with the defendant’s description of the accident. I accept Ms Bomholm’s evidence. She did not appear to me to have any axe to grind with respect to her former husband.
It is clear that up until that time the plaintiff was of the view either that he fell from the vehicle or stepped out of the vehicle.
According to the plaintiff, who initially was very uncertain as to dates, about a week or two after he came out of hospital (agreed at 7 April 1998) he went to see the defendant on a Saturday. He had a discussion with the defendant whereby he said to her "Don’t lie to me. Tell me the truth. Did you push me out of the vehicle." Her reply was "Yes, I did push you out of the vehicle. What can you do about it." According to the plaintiff he left immediately. On the following day, a Sunday, he went around in the evening. He asked the defendant "Why did you push me out of the vehicle." She replied "I was angry."
In his statement to the investigator of 18 May 1998 the plaintiff described this incident as follows:
"I have not had much contact with her since the incident but last Saturday I went to her place and asked her to tell me the truth of what happened.
I was prompted to do this after the police asked me if I was pushed.
She related the story of the day leading up until she picked me up and she was getting more agitated and then as she made a cup of coffee she dropped it and walked right up to me and said 'Fred, I did push you'.
I was absolutely shocked and I said 'Why, I don’t know what I’ve done to you' and I walked out.
Last night I saw Linda again and she again told me that she pushed me out of the car. She did not say why. This was when I went around to her place to try to patch things up."
It was the defendant’s evidence that following the plaintiff’s discharge from hospital on 7 April 1998 the plaintiff came to her place and stayed for about four to five days. She then returned him to his home. Thereafter he started coming around to her place. He wanted to know what had happened. She said that he had opened up the door and stepped out. On one occasion she had said "I pushed you out is that what you want to hear." She did not mean that. She did not push him out.
In cross-examination she accepted that she was visited by the police on 25 May 1998 (incorrectly put to her by counsel as 27 May 1998) and that the conversation with the plaintiff took place in about the middle of May. That would accord with the plaintiff’s statement to the investigator. It was her evidence that she made the statement as a result of badgering by the plaintiff. She made the statement that she pushed him out of sheer frustration. She did not continue to say she pushed him and told him that it was said out of anger. She did not want to continue her relationship with the plaintiff and as far as she was concerned they split up about June or July 1998.
Senior Constable Rodgers gave evidence that he received an offence report for an assault. The plaintiff had made a claim that he had been pushed out of the motor vehicle. He spoke to the defendant on 25 May 1998. The defendant told him that she had told the plaintiff that she had pushed him out of the motor vehicle but that it was only said out of temper, in sheer frustration, jokingly and it was not true. Senior Constable Rodgers found no evidence to back up an assault and recommended that no action be taken.
The 18 May 1998 was a Monday and hence the reference in the plaintiff’s statement to the investigator to the previous Saturday and Sunday is a reference to 16 and 17 May 1998. Up until this time it appears the plaintiff had always accepted either that he fell out of the vehicle or that he had stepped out of the vehicle. The statement that she had pushed him out of the vehicle was clearly a statement against her interest. However I accept her explanation for making the statement and that it was not true.
The plaintiff called a further witness, Andrew Hoppe. According to Hoppe he first met the defendant in early to mid 1998 and formed a relationship with her mid to end of year. That relationship lasted for 10 months. He gave evidence of a particular incident when he and the defendant had been travelling in the defendant’s van in a northerly direction along Kwinana Freeway. During the course of the trip he had what he described as a screaming row with the defendant. He asked the defendant to stop her vehicle. She stopped her vehicle. He got out. Some two to three days later they were arguing again. He said to the defendant "I can see why Fred jumped out of the bloody car." She said "He didn’t fucking jump. I pushed the prick." According to Hoppe she has never withdrawn that admission.
The defendant’s version is that during the course of the journey she had an argument with Hoppe. He said to her during the course of the argument "No wonder Fred jumped out of the car." She did not say she pushed the plaintiff. She said to Hoppe "Get out of the fucking car. I don’t want your fucking money." She stopped the vehicle and he got out.
In cross-examination Hoppe accepted that :
1.He had pleaded guilty to assaulting the defendant.
2.His previous partner had taken out a restraining order against him.
3.That he loaned the defendant money because she needed it.
4.That the agreement was for the defendant to pay principal and interest but he received nothing back.
5.That he resented the fact that he was foolish and had lost money.
6.That the defendant was made bankrupt.
7.That the relationship terminated in June 1999.
8.That the assault occurred after the relationship broke up.
Bearing all those matters in mind I am not prepared to accept Hoppe’s evidence in relation to the alleged admission. I am of the view that Hoppe is motivated by revenge. I prefer the evidence of the defendant.
As the parties have agreed quantum it is unnecessary for me to provisionally assess the damages.
For the above reasons it is my finding of fact that the defendant did not push the plaintiff out of the motor vehicle. It follows that the action should be dismissed.