Withnell v Tran - [2023] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WITHNELL -v- TRAN [2023] WADC 100
CORAM:   LONSDALE DCJ
HEARD:   2 JUNE 2023
DELIVERED          :   29 AUGUST 2023
FILE NO/S:   CIV 1457 of 2020
BETWEEN:   ALEX JOHN WITHNELL
Plaintiff
AND
QUANG HOAN TRAN
Defendant

Catchwords:

Negligence - Motor vehicle accident - Contributory negligence - Amendment of pleadings - Presumption of obvious risk

Legislation:

Civil Liability Act 2002 (WA), s 5F, s 5K, s 5N
Evidence Act 1906 (WA), s 79C
Rules of the Supreme Court 1971 (WA), O 21 r 5(2)

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr A J Stewart
Defendant	:	Mr G P Bourhill SC

Solicitors:

Plaintiff	:	Premier Compensation Lawyers
Defendant	:	HBA Legal

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

Burns v Pearce [2010] WASCA 214
Daly v Liverpool Corporation [1939] 2 All ER 142
Gunn v Meiners [2022] WASCA 95
Leishman v Thomas (1957) 75 WN (NSW) 173
Reardon v Seselja [2021] ACTCA 4
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40

LONSDALE DCJ:

Introduction and overview

Just after 6.30 am on 25 June 2017 the plaintiff was injured after coming into contact with a small delivery truck being driven by the defendant across Grosvenor Road in Mount Lawley, near the corner of Beaufort Street.
The plaintiff submits that the defendant's manner of driving was negligent and thereby caused the plaintiff's injuries.
The defendant denies that he was negligent. He says that he had swerved to avoid the plaintiff who had approached his vehicle and who he believes was attempting to rob him. The defendant says that the accident was caused solely by the plaintiff's own negligence.

The pleadings

The particulars of the plaintiff's claim in negligence are contained in the amended statement of claim[1] which reads:
[1] Amended statement of claim dated 15 October 2021.
2.(i) On or about 25 June 2017 ('the material date') the Plaintiff was a pedestrian walking in a carpark located at 77 Walcott Street, Mount Lawley, in the State of Western Australia.
(ii)The Plaintiff and at least 1 other male were searching for a female named Lily who had wandered off from a party which they had all attended. The Plaintiff was concerned for the safety of the female and was searching for her on foot in the early hours of the morning.
(iii)The Plaintiff approached a truck being driven by the Defendant ('the vehicle') in an attempt to ask the driver as to the whereabouts of the female who he was searching for.
3.The Plaintiff became caught on the side of the vehicle and/or was dragged by the vehicle for a short period, thereby falling underneath the vehicle and being run over by the rear wheels of the vehicle was struck by a vehicle being driven by the Defendant ('the accident'), causing personal injuries to the Plaintiff.
4.The accident was caused by the negligence of the Defendant.
The defendant's amended defence[2] pleads that the defendant was not negligent or, alternatively, that his actions were a response to a sudden or extraordinary emergency.
[2] Defendant's amended defence filed 24 November 2023.
2.The Defendant admits paragraph 2(i) of the Amended Statement of Claim.
3.The Defendant does not admit paragraph 2(ii) of the Amended Statement of Claim.
4.The Defendant denies paragraph 2(iii) of the Amended Statement of Claim, and says:
4.1.The Defendant observed the Plaintiff walking toward his truck while he was driving his truck through the car park;
4.2.The Plaintiff was alone;
4.3.When the Plaintiff was a short distance from the front of the Defendant's truck, he suddenly ran towards the passenger side of the truck;
4.4When the Plaintiff was adjacent to the passenger side door of the truck, he forcibly struck the window of the door with on or both of his fists in an aggressive manner;
4.5.The Defendant was frightened by the Plaintiff's behaviour, fearing that the Plaintiff was trying to gain access to the cab of the truck (the door of which was unlocked) to attack him or rob him;
4.6.In response to the Plaintiff's actions, the Defendant swerved the truck slightly to the right and continued driving though the car park, in an effort to get away from the Plaintiff;
4.7.At no time did the Plaintiff make any motion toward the Defendant to suggest he wanted to speak to him, nor did he approach the driver's side of the truck.
3. 5. As to paragraph 3 of the Amended Statement of Claim, the Defendant:
~~3.1~~. 5.1. admits that he was the driver of a vehicle;
~~3.2~~. 5.2. states that the Plaintiff appeared to jumped on to the side of the Defendant's vehicle while it was moving and then fell off; and
~~3.3~~. 5.3. otherwise denies the allegations in that paragraph.
4.6. The Defendant denies paragraph 4 of the Amended Statement of Claim and the particulars contained therein.
7.If the Defendant's manner of driving his truck in any way caused or contributed to the Plaintiff sustaining an injury (which is denied), his manner of driving was not negligent but was consequence of the surrounding circumstances and was a prudent response to a sudden emergency or crisis created solely by the aggressive behaviour of the Plaintiff.
The defendant further pleads that the accident was caused as a result of the negligence of the plaintiff:
5. 8. The Defendant says further that the accident occurred as a result of the negligence of the Plaintiff by jumping on to the side of the Defendant's moving vehicle and falling from the vehicle.
Further, and in the alternative, the defendant pleads that the plaintiff was contributorily negligent, the particulars of which are as follows:
~~7.1.10.1.~~ 11.1     The Plaintiff jumped on to the side of the Defendant's moving vehicle and subsequently fell from the vehicle.
~~7.2. 11.2.~~ 11.2    failed to take any or adequate care for his own safety; and
~~7.3. 10.3.~~ 11.3 was intoxicated by alcohol at the time of the accident giving rise to a presumption of contributory negligence under Section 5K of the Civil Liability Act;
~~7.4. 10.4.~~ 11.4    the Defendant relies on the provisions of the Civil Liability Act 2002 (WA) ('the CLA') relating to contributory negligence, in particular, sections 5K and 5L of the CLA.
Further, and in the alternative, the defendant pleads that the plaintiff voluntarily accepted the risk of injury pursuant to s 5N of the Civil Liability Act 2002 (WA) (CLA):
~~8.1. 11.1~~ 12.1 The Plaintiff jumped on to the side of the Defendant's moving vehicle.

Overview of evidence adduced at the trial

Both the plaintiff and defendant gave evidence and the defendant called former Senior Constable Brendon Gordon Ryan (who was involved in the police investigation).
A bundle of documents from the file of a police investigation into the incident was tendered by consent.[3] Much of that documentation, (although potentially admissible as business records under s 79C of the Evidence Act 1906 (WA)) contained evidence which was either irrelevant or otherwise inadmissible. For example, the documents include a police memorandum containing the opinion of police officers concerning whether the defendant should be charged with an offence. There are police running sheets which chronicle the history of the police investigation but which contain nothing probative of the issues I must determine. I have disregarded those documents insofar as they contain what would otherwise be hearsay and opinion evidence.
[3] Exhibit 2.
The most significant evidence, apart from the testimony of the parties, was CCTV footage showing the movements of the plaintiff and the defendant's vehicle just before, at the time of and just after the incident.[4]
[4] Exhibit 1.

Facts not in dispute

The following facts are not in dispute.
At about 4.30 am the plaintiff and two others had travelled to the Mount Lawley area with the intention of going to the 24‑hour pharmacy on Beaufort Street. One of the plaintiff's companions, a young woman by the name of Lily, had wandered off. When she did not return a short time later, the plaintiff left in search of her.
At about 6.37 am, the plaintiff can be seen in CCTV footage walking through the carpark behind the 24‑hour pharmacy on Beaufort Street, in the direction of Grosvenor Road.
CCTV footage shows the following sequence of events. The defendant's delivery truck (the defendant just having made a delivery to the IGA on the corner of Grosvenor Road and Beaufort Street) exits the carpark behind the IGA in a northerly direction towards Grosvenor Road.
The defendant appears to be intending to cross over Grosvenor Road to enter the carpark to the north of Grosvenor Road (just behind the rear of the Flying Scotsman Hotel). As the defendant crosses Grosvenor Road, the plaintiff (who can be seen in the footage with his hands in his front jeans' pockets) steps off a paved area and onto Grosvenor Road close to the area of the truck's passenger side door.
The defendant takes evasive action by deviating to the right and away from the plaintiff. The plaintiff pivots to his left to face towards the direction of the moving truck. The plaintiff then disappears from view behind the passenger side of the truck as it continues its trajectory towards the carpark behind the Flying Scotsman Hotel.
Within moments of the plaintiff disappearing from view, CCTV footage from another angle shows the following in sequence. The plaintiff is hanging onto the passenger side mirror of the moving truck. Within a matter of seconds, the truck speeds up before turning sharp left and accelerating away. Just after the truck's left turn, the plaintiff is dislodged from the side of the truck and falls to the ground.
As a consequence of the events I have just described, the plaintiff suffered very serious injuries, including head injuries. It is unknown whether the plaintiff's injuries were caused by him falling from the moving truck or the truck running over him after he fell.

Evidence of the plaintiff

The plaintiff gave evidence that on the afternoon of 24 June 2017, he went to his friend, James Pratley's house in Kiara and had a few drinks.[5]
[5] ts 29.
The plaintiff said he arrived at Mr Pratley's house at about 12.00 pm or 1.00 pm that afternoon. From that point on, 'things got a little bit fuzzy'.[6] He had been emotional because he had had an argument with his partner. He had been drinking heavily throughout the afternoon.[7]
[6] ts 30.
[7] ts 31
The plaintiff said he was feeling pretty upset although he denied being angry. He had wanted to get past the argument with his girlfriend but was not in a bad mood. He had drunk beer and had taken drugs.[8] Under cross-examination from counsel for the defendant, the plaintiff said he had started drinking in the afternoon and had kept drinking until he left Mr Pratley's house. He did not recall taking (the drug) Valium but could have done. When asked by counsel whether he had also smoked methylamphetamine, the plaintiff said, 'yes I probably did'.[9]
[8] ts 32.
[9] ts 40.
The plaintiff said that he left Mr Pratley's house in the early hours of the morning[10] and had gone to Mount Lawley at about 6.30 or 7.00 am. The reason for going to Mount Lawley was because Mr Pratley had wanted to pick up some prescriptions.[11]
[10] ts 32.
[11] ts 33.
When the plaintiff arrived in Mount Lawley, Lily said she needed to go to the toilet and had left. Mr Pratley had been unable to find her and asked the plaintiff if he could help him search for her. The plaintiff said he and Mr Pratley split up in order to look for her.[12]
[12] ts 33.
The plaintiff said that he went to the carpark behind the pharmacy but was unsure in what direction. He recalled trying to find Lily by searching different back alleys and places around the carpark.[13]
[13] ts 33.
The plaintiff identified himself in the CCTV footage walking in the area behind the shops on Beaufort Street. He denied that he appeared intoxicated in the footage; he thought his manner of walking appeared to be 'pretty straight'.[14]
[14] ts 35.
The plaintiff said that when he saw the defendant's truck, he had tried to flag it down in order to ask the driver whether he had seen any girls. The plaintiff said he 'made a bit of a fuss … like slow down, slow down'.[15]
[15] ts 35.
The plaintiff said he made a hand gesture in order to get the truck driver's attention.[16] He had intended to ask the truck driver whether he had seen a young girl but did not get the opportunity to do so because 'it all happened too quick'. The plaintiff denied running at the vehicle; he said he was walking in a fast‑paced manner.[17]
[16] ts 36.
[17] ts 37.
The plaintiff said he could not recall a great deal from the night. He remembered being at James Pratley's house and going to the Mount Lawley pharmacy. He remembers looking for Lily and 'everything up until the accident'.[18]
[18] ts 38.
The plaintiff was asked in examination-in-chief what he had been doing at the point when the CCTV showed him being obscured behind the truck. He said:[19]
I think I might - may have, just out of instinct, to put my hand on his mirror. I went to go grab his mirror at least, just for - to - because I was - wanted to talk to him. I think he may have gotten spooked with my hand still gripped onto the mirror which is when I was being dragged after that.
(emphasis added)
[19] ts 38.
Under cross-examination, the plaintiff denied the suggestion that the only things he could remember were the things that he had seen in the CCTV footage. He said he remembered the 'bullet points' of that night.[20] He denied the suggestion he had recreated a recollection of events based on when the accident happened.[21]
[20] ts 41.
[21] ts 42.
Under cross‑examination, the plaintiff said he had used a hand gesture to try and get the truck driver's attention. He was unable to say whether he used his right or left hand. The plaintiff agreed that, as he was trying to walk towards the truck, the truck driver would have been unable to see him. He further agreed that he had not motioned to the truck driver until he was in front of the truck. The plaintiff said that, at the point he had tried to get the defendant's attention, he was:[22]
… probably closer to his doors. It - I was slightly in front of the truck but slightly to the side, I think. Well, I didn't expect him to drive off or even speed off. I thought maybe he would stop to assist me ….
[22] ts 45.
The plaintiff denied a suggestion by counsel for the defendant that he had not made any signal to the driver when he was in front of the truck.[23] The plaintiff agreed that the footage did not show him taking his hands out of his pockets[24] and that, up until the point when the truck went past him, he had not taken his hands out of his pockets.[25]
[23] ts 45.
[24] ts 46.
[25] ts 47.
The plaintiff denied in cross-examination having banged on the (passenger side) window but conceded that the driver 'might have got the spooks' and that it was quite possible that he had scared him.[26] The plaintiff denied that he was intending to break into the truck.[27]
[26] ts 47.
[27] ts 48.
Under re-examination, the plaintiff was asked whether he could clarify the point at which he can recall events. He said:[28]
Until the blackout - when I blacked out from the accident, I don't - I can recall pretty much everything. Walking up and trying to get his attention. It wasn't until - I mean - I didn't try to wave him down early. But when I got close to him, I did raise my hands, signalling him down and I assumed he was going to stop. But like - like an idiot I grabbed his mirror with the wrong intent - with the - I'm not - with the wrong idea about the truck driver. I though he was going to stop. I didn't realise he was going to keep driving.
[28] ts 54.
The plaintiff agreed in cross‑examination that he had not been in danger of being hit by the truck before he had hung onto the mirror.[29] He remembered being dragged after he had grabbed the mirror but did not remember being run over by the truck but had a memory of his leg going underneath the wheel and 'the wheel catching grip' of his leg.[30]
[29] ts 48.
[30] ts 49.

The defendant's evidence

The defendant gave evidence with the assistance of a Vietnamese interpreter.
The defendant said that in 2017 he was employed on a casual basis for Golden Bakery. On the morning of 25 June 2017, he was delivering bread to the IGA on Walcott Street in Mount Lawley. He parked in the carpark and completed his delivery after which he got back into his truck to drive off.[31]
[31] ts 86.
The defendant saw the plaintiff walking towards him with his hands in his pockets. He thought the plaintiff was 'looking very aggressive'. He described the plaintiff as 'not … normal because he's watching me with his eyes … he's not human'.[32]
[32] ts 87.
The defendant said that, as the plaintiff was walking towards him, he tried to move away from him and 'drive to the road'.[33] He drove or turned the truck away from him. He heard a loud bang on the left side of his vehicle and said the plaintiff tried to pull the door open. He could see the plaintiff was trying to grab the door and get into his truck.[34]
[33] ts 88.
[34] ts 89.
The defendant said that he was 'so frightened'[35] and so drove forward, trying not to hit the trees and cars parked there.[36]
[35] ts 89.
[36] ts 90.
The defendant said that some years previously, when he had been working at a shopping centre, a man had come up to him and had asked him for a cigarette before assaulting him by hitting him on the head several times.[37]
[37] ts 92.
Under cross‑examination by counsel for the plaintiff, the defendant denied the suggestion that the plaintiff had not been 'running' towards the truck although he did agree that the CCTV footage did not show the plaintiff 'running' towards the truck. The defendant maintained that he believed that the plaintiff did bang on the truck.[38]
[38] ts 99.
The defendant agreed in cross-examination that he did not slow down as he drove away from the plaintiff. However, he denied increasing his speed to get away from the plaintiff. The defendant said he was driving 'at normal speed for a carpark'[39] but would have slowed down before reaching the speed hump. The defendant said he was 'so frightened' and 'was just trying to drive'.[40]
[39] ts 101.
[40] ts 107.
Under cross-examination, the defendant agreed that, as he drove past the man, he did not see what the man was doing, but when the man 'hit' the truck, he had tried to 'run away' from him.[41] The defendant agreed with counsel for the plaintiff that he then drove 'full speed' over the speed bump[42] before making a sharp left turn.
[41] ts 108.
[42] ts 111.
The defendant denied the suggestion by counsel for the plaintiff that he could have continued straight on [rather than turning sharp left]. He denied he could have done so because there were 'trees and a kerb' and a car preventing him from exiting the carpark that way.[43]
[43] ts 112.
The defendant said that, at the time that he made the sharp left turn, he believed the plaintiff to be behind the truck.[44]
[44] ts 121.

The evidence of Brendan Ryan

Brendan Ryan was a police officer who conducted an investigation into the incident. He spoke to some of the documentation contained in Exhibit 2 but said little else of relevance.

Factual findings

I find that both the plaintiff and the defendant were honest witnesses doing their best to recall the events of that morning. However, both were unreliable to some degree.
The plaintiff, by his own admission, could only remember the 'bullet points' (as he put it) of the night in question. He had consumed both alcohol and drugs. He had been at a party since the previous afternoon evidently having had no sleep. He had 'probably' consumed methylamphetamine.

Having regard to the plaintiff's evidence and in particular, his evidence‑in‑chief, I find that the plaintiff did not have an actual memory of putting his hand on the truck's mirror. The plaintiff's use of the words 'I think' in his evidence‑in‑chief is consistent with him attempting to reconstruct his actions based on what he had seen in the CCTV footage, rather than recounting his own memory of events. Also, the plaintiff's evidence was that he could not remember much of the detail of that night. He could not recall any specifics as to what happened after he grabbed hold of the side mirror. He could not recall the truck driving off with him attached to it and was unable to explain why he had been holding onto it. Although the plaintiff's evidence in re‑examination might suggest he had a memory of having grabbed onto the side mirror, I consider it more likely that he was reconstructing his evidence based on the CCTV footage.
The defendant, on the other hand, was not affected by alcohol or drugs. Plainly, however, he thought the plaintiff was intending to rob him and was frightened as a consequence. The fact that the defendant was fearful, in combination with the fact that events were unfolding quickly, means that it is unsurprising that he was unable to describe the events with pinpoint accuracy.
I find that comprehension of the defendant's evidence was complicated to some degree by the fact that his evidence was presented in less than perfect English and/or with the assistance of an interpreter.
The CCTV evidence is the best objective evidence in helping me to understand the movements of both the plaintiff and the defendant both before and after the plaintiff came into contact with the vehicle. Frustratingly, the CCTV footage does not show the impact between the plaintiff and the defendant so there is no objective evidence as to how the plaintiff came to be hanging onto the side mirror of the vehicle.
I accept the plaintiff's evidence that he was not intending to rob the defendant. Nevertheless, I find that, in the moment, the defendant believed that the plaintiff was intending to rob him. I consider that the defendant had a credible reason to fear that he was about to be set upon, quite apart from him having previously had the experience of being attacked and assaulted by a stranger. That is because (as the CCTV footage shows) the plaintiff made a deliberate move towards the side of the defendant's vehicle, in circumstances where the street was deserted and in complete darkness.
I find that the defendant was honest in his recollection of events. I do not doubt that the defendant heard a bang. However, I am unable to say what caused the bang. I find it likely that it was caused by some action on the part of the plaintiff (there being no other possible explanation).
The plaintiff denied banging on the vehicle but, as he was unable to remember all the events of that night, I cannot discount him having done so and having subsequently forgotten.
The defendant did not see the plaintiff grab hold of the side mirror. However, the CCTV footage shows the plaintiff was hanging onto the vehicle. This could only have been as a result of a conscious choice on the part of the plaintiff.
I find that the defendant, having heard the bang took fright and acted instinctively. He sped up and turned sharp left towards the western exit of the carpark and thereafter left the area without appreciating that the plaintiff had been hanging onto the side of the vehicle or had been injured.
The CCTV footage does not definitively establish that the plaintiff made hand gestures (of the kind used to gain someone's attention) as the plaintiff had claimed. On the balance of probabilities, I find that the plaintiff likely did make some kind of gesture having regard to the plaintiff's evidence (which I generally accept) and the CCTV footage showing the plaintiff motioning in a way suggestive of him about to remove his hands from his pockets. However, I also accept the defendant's evidence that he did not see any hand gestures or at least did not perceive that the plaintiff was behaving in a non‑threatening way.

Legal principles of negligence

It is trite to say that the driver of a motor vehicle owes a duty of care to other road users including pedestrians.
The duty of care that the defendant as the driver of a motor vehicle owed to the plaintiff was to exercise reasonable care to avoid a foreseeable risk of injury to the plaintiff: Burns v Pearce [2010] WASCA 214 [33].
The relevant standard of care when driving a motor vehicle is that which a reasonable person would observe: Daly v Liverpool Corporation [1939] 2 All ER 142, 144 (Stable J). A reasonable driver is expected to take into account the possibility of inadvertence or negligence by other road users and, in particular, pedestrians. That requires drivers to keep a proper lookout at all times so as to avoid a collision with a physically vulnerable plaintiff who comes into the vehicle's path.
To answer the question of what a reasonable person would do in response to the risk, there must be an assessment of the risk, the degree of probability of its occurrence in combination with other conflicting responsibilities and the difficulty or inconvenience of taking evasive or alleviating action: The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, 47 ‑ 48 (Mason J).
The circumstances of the present case enliven consideration of the 'agony of the moment' principle which was stated in Leishman v Thomas (1957) 75 WN (NSW) 173, 175 (Street CJ):
This so-called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant charged with negligence, may have been forced to act in a sudden crises or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.
…

The defendant's application to amend the pleadings

Before I turn to consider the application of the facts to the question of whether the defendant was negligent, I must deal with the defendant's application to amend the pleadings.
After the conclusion of the evidence, the defendant made an application to amend the pleadings to delete the reference to the plaintiff 'jumping' onto the side of the vehicle to assert that the plaintiff had been 'holding onto the passenger side wing mirror of the defendant's moving vehicle'.
The plaintiff objected to the proposed amendment on the basis that it had always been the defendant's case that the plaintiff had 'jumped' onto the moving vehicle.
Order 21 r 5(2) of the Rules of the Supreme Court 1971 (WA) provides that:
The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
The principles of procedural fairness in relation to the pleadings were summarised by the Court of Appeal in Gunn v Meiners [2022] WASCA 95 [104] - [113]:
104One aspect of procedural fairness is that a person against whom a claim is made must be given a 'reasonable opportunity' of being heard, ie of appearing and presenting his or her case. In HT v The Queen Kiefel CJ, Bell and Keane JJ explained that as a corollary:
In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made. (citations omitted)
105Closely related is the rule that:
[A] decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.
106Thus, at the heart of the requirement to afford procedural fairness is that the party whose interests are liable to be affected by a decision must be put on notice of the case against him or her, and given an opportunity to respond. Relevantly for present purposes, procedural fairness required that Ms Gunn be put on notice of what was to be determined by the primary judge at the trial, and then to be given a reasonable opportunity to be heard, by presenting her case by evidence, information and submissions.
107However, the rules of procedural fairness do not have immutably fixed content; the content of procedural fairness may vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of practical injustice.
108The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court and the legislation and rules which govern them.
109In a civil case, the procedural fairness requirement that a party be adequately informed of the case against him or her is satisfied, ordinarily, by pleadings.
110Pleadings have two main functions. First, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. Second, to ensure a fair trial by putting the other party on notice of the case to be met. In the latter respect, the function of a pleading is to state the case that must be met with 'sufficient clarity'.
111It follows from the procedural fairness aspect that attends the function of the parties' pleadings that, as a general rule, relief is confined to that available on the pleadings. Thus it is an error for a trial judge to decide a case relying on reasons or grounds that were not raised on the pleadings or otherwise go beyond the issues joined between the parties at trial. However, as is implicit in what we have just said, a case may be litigated at trial in a manner that is materially different from the issues as defined by the pleadings. The parties may disregard the pleadings - either confining or enlarging the issues - and fight the case on issues chosen at the trial. It is well established that where this occurs the parties cannot return to the pleadings as governing the area of contest (although there should be an appropriate amendment so that the cause of action alleged forms part of the court record).
112The position is summarised by Mason CJ and Gaudron J in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd in a passage that should be repeated:
[P]leadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.
113Their Honours go on to explain that, ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted.
(footnotes omitted)

Consideration of the factors relevant to the exercise of my discretion to amend the pleadings

I do not consider that the defendant's application was likely to result in significant delay. It was the plaintiff who sought an adjournment to consider the defendant's application. I allowed the adjournment for a reasonable period of time to enable the plaintiff to do that. The costs of the adjournment are, in the scheme of things, not significant as the amendment to the pleading was minor and the facts are straightforward.
The plaintiff's primary objection to the proposed amendment was that the plaintiff was denied procedural fairness.
In the plaintiff's written outline of submissions, the plaintiff articulated his claim to a denial of procedural fairness thus:
42.… the circumstances leading to the plaintiff taking hold of the passenger side window relevant to the proposed amended pleading of the defendant, but it is too late to elicit that evidence. From the plaintiff and the defendant.
43.In general terms, the plaintiff's preparation for trial and his approach taken with the witnesses may have differed if the amendment was proposed prior to the commencement of trial. As the evidence is closed and the witnesses cannot be recalled, the plaintiff has suffered irreparable prejudice.
49.It is too late for the plaintiff to elicit evidence as to the reasons why he took hold of the passenger side window and what his state of mind may have been when taking that action.
The plaintiff submits that he has been prejudiced because the defendant had submitted from the outset that the defendant's fear had 'significantly increased' when the plaintiff 'jumped on the side of the vehicle' - rather than when the plaintiff held onto the side of the mirror. The plaintiff submits that this calls into question the manner in which the trial may have been conducted, and that the plaintiff's evidence may have been different.
The plaintiff's argument is misconceived. The plaintiff gave evidence that he had seen the CCTV footage which showed him hanging onto the side of the vehicle. As I have found that the plaintiff had no clear memory of how he came to be attached to the vehicle, an attempt to elicit evidence from him as to 'what his state of mind may have been when taking that action' would be futile. The plaintiff's evidence could have been no different.
The plaintiff submits that he has been prejudiced because it was not suggested to the defendant that his fear increased as the plaintiff had walked over to the truck or had hung onto the side of the vehicle. Counsel for the plaintiff said he did not put these propositions to the defendant because the case had 'not been framed in this way'. Again, the plaintiff's argument is misconceived. Although the pleaded defence invites an inference that the defendant 'jumped' onto the vehicle, the defendant did not suggest that he saw what the plaintiff did. Indeed, his evidence suggests that he did not. Counsel for the plaintiff has not demonstrated how he might have questioned the defendant differently. Whether or not the plaintiff 'jumped' on the side of the vehicle or walked quickly towards it would have made no difference to the defendant's reaction.
It is true that the defendant's proposed amendment is made at a late stage but there is no prejudice to the plaintiff. There is no material difference between an assertion that the plaintiff had 'jumped' onto the moving vehicle rather than 'held onto' the vehicle. In my view, the plaintiff's act of holding onto the wing mirror is qualitatively no different to the act of 'jumping' onto the vehicle: both descriptions of the plaintiff's actions involve a description of sudden movements on the part of the plaintiff towards the vehicle - neither of which the defendant had ever claimed to see.
The issues are straightforward. The variation to the pleaded facts is slight. It does not change the defendant's fundamental contention that it was the plaintiff's approach to the truck which caused him to react the way he did and the plaintiff's own conduct which caused the incident.
The proposed amendment is to a mere factual particular and did not plead a new defence. It follows that the amendment to the pleading does nothing more than reflect the evidence of which the parties had always been aware. I would allow the amendment.

Was the defendant negligent?

The plaintiff submits that the defendant was negligent in his manner of driving because he would have, or at least should have, been aware or foreseen that the plaintiff was near the vehicle when he sped up. I do not accept this submission for the following reasons.
The CCTV footage of the plaintiff hanging onto the truck shows his body to be below the level of the window. The defendant could not have known that he was attached to the truck. I accept the defendant's evidence he did not know he was there.
Also, prior to the plaintiff attaching himself to the truck, the defendant had swerved to avoid him. It was entirely reasonable for the defendant to keep his eyes on the road ahead after he passed him.
I find that the plaintiff's contact with the truck had nothing to do with any action on the part of the defendant. The defendant did not and could not reasonably have foreseen that the plaintiff would have attached himself to the truck by hanging onto its side. The plaintiff has failed to demonstrate how he came to be in this position and thus has failed in his evidentiary onus.
The plaintiff submitted that the 'agony of the moment' principle did not have application here. The plaintiff cited the case of Reardon v Seselja [2021] ACTCA 4, a case in which Burns and Perry JJ having cited Leishman v Thomas, went on to review the facts of other cases involving an 'agony of the moment' defence. Their Honours said at [18] ‑ [22]:
18In Abdallah, when driving on the motorway, a motor vehicle in which the appellant was a passenger and driven by her nephew, swerved in front of the respondent, bumping the front of his vehicle. The nephew's car then cut the respondent's car off on the exit ramp from the motorway causing the respondent to just draw to a stop approximately 5 m behind. The respondent locked the doors of his car on observing the driver walking towards him wielding two karate sticks. The nephew demanded in threatening terms that the respondent get out of the car and, when he failed to do so, smashed the external wing mirror of the respondent's car and then hit and kicked the windows, doors, and side of the car. The respondent feared for his safety and decided to leave the scene as quickly as possible. At this stage he was in state of panic. As he moved his vehicle out into the stream of traffic, he was obliged, in the absence of the wing mirror, to look over his right shoulder. In so doing, he failed to notice the distance between his car and the car ahead and collided with the rear of that car as a result of which the aunt suffered injury.
19The trial judge in Abdallah found that the respondent was frightened when he attempted to move off and was not in possession of the faculties he would be under normal circumstances. Nonetheless her Honour concluded that it had not been beyond the respondent, even in the circumstances, to have ensured that he left a safe distance between the cars as he moved off into the stream of traffic and his negligence caused the collision: at [365] (Stein JA).
20Stein JA, with whose reasons the other members of the Court of Appeal agreed, held that the trial judge had fallen into error in so holding. His Honour quoted with approval the reasoning of Street CJ in Leishman, holding that the reasonableness of a defendant's conduct must be judged according to the circumstances of the particular case. Applying that approach, Stein JA held at 366 that:
I am unable to agree that the actions of the respondent, as found by her Honour, were unreasonable in the circumstances. The respondent was in a situation that was not of his making. Undoubtedly, if he had not felt threatened and if his mirror had not been smashed, he would have taken greater care in driving off. However, he was intimidated and believed the situation required immediate action. His reaction was entirely reasonable. It is true that the action which he took resulted in the collision. However, given the circumstances he faced, his actions were perfectly reasonable and accorded with the conduct of a reasonably prudent person.
21Finally, in Cockburn, two male passengers in the rear of a taxi verbally abused the driver during a journey that ended with the taxi colliding with a pole. Shortly before the collision, the passenger who was seated behind the driver pulled the driver's seat belt against his chest. The taxi driver panicked, lost control of the taxi, and ran off the road. McWilliam AsJ held that the driver's actions accorded with the standard of care required of him in the circumstances.
22In so holding, McWilliam AsJ explained at [29] in line with the principles outlined above that:
Notably, the issue is not whether Mr Jacobsen [the tortfeasor] could have (or should have) done something else. It is whether what he did do was unreasonable in the light of the circumstances: see Marien v Gardiner [2013] NSWCA 396; (2013) 66 MVR 1 at [35] and the cases there-cited. To similar effect is the statement of Tobias AJA (with whom Bathurst CJ and Basten JA agreed) in Stuart v Walsh [2012] NSWCA 186; (2012) 61 MVR 271 at [65]:
…the issue is not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision such as remaining in Lane 1 without the necessity of having to apply his brakes. The issue is whether in all the circumstances with which he was faced, his reaction to the sudden and unexpected movement of Dr Walsh onto the carriageway was unreasonable. In my opinion it was not. It accorded with the response of a reasonably prudent driver in the position Mr Stuart found himself.
(emphasis in the original)

The plaintiff submits that the present case should be distinguished from Reardon v Seselja and the cases cited therein on the basis that the defendant has not established that he was confronted with an actual physical threat resulting in him needing to take evasive or alleviating action.
The plaintiff submits the defendant could not reasonably have concluded that he was being threatened. In these circumstances, the plaintiff submits it was not reasonable for the defendant to have driven in the way he did and that he failed to take reasonable care by failing to properly control the speed and direction of the truck by slowing, coming to a complete stop or driving forward at a controlled speed.
I do not accept the plaintiff's submissions having regard to the plaintiff's actions in the circumstances: the streets were in darkness and deserted. The plaintiff was moving purposefully towards the vehicle for reasons that could not have been apparent to the defendant. The plaintiff caused a loud bang which frightened the defendant and caused him to fear that the plaintiff was going to enter his vehicle and rob him. The defendant's reaction was understandable and entirely reasonable.
I am not satisfied that the plaintiff did - or even had the opportunity to - convey to the defendant that he wanted to speak to him at any time prior to approaching the side of the truck. In any event, that is not how the defendant perceived the plaintiff's conduct.
The defendant could not have known that the plaintiff was hanging onto the side of the truck; he could not have seen him, even if he had looked in that direction. Nor could the defendant have been aware or could reasonably have foreseen that the plaintiff could have been attached to the truck. The plaintiff's contact with the truck was caused by his own conscious actions.
I do not consider that a reasonable person in the position of the defendant ought to have appreciated the risk of driving in the manner he did because he could not reasonably have foreseen that the plaintiff would adopt such a manoeuvre.
The defendant's actions were a prudent response to a situation entirely of the plaintiff's own making.

Voluntary assumption of risk - s 5N of the Civil Liability Act 2002 (WA)

If I am wrong in my conclusions that the defendant was not negligent, I find that the defendant has a good defence under s5N of the which the CLA provides:
(1)In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2)For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
The definition obvious risk is found in s 5F which states:
(1)For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)Obvious risks include risks that are patent or a matter of common knowledge.
(3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Here, the plaintiff walked directly towards a moving vehicle and turned to follow it when that vehicle turned away from it. The plaintiff took hold of the side of a moving vehicle. This was, quite plainly, a dangerous action, which carried with it the 'obvious risk' of injury as defined by s 5F.
The plaintiff has failed to discharge the onus of proving that he was not aware of the obvious risk of harm created by his conduct.

Conclusions and orders

The plaintiff's claim is dismissed.
There will be judgment for the defendant.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JS
Associate to the Judge
29 AUGUST 2023