In Corowa v Winner Her Honour Judge Richards in the District Court in Mackay dismissed the Plaintiff’s claim for damages for personal injuries and ordered that he pay the Insurer’s costs to be assessed. This was because the Driver proved that driving over the Plaintiff’s foot was self-defence.

Driver Intentionally Drives Over Plaintiff’s Foot

On 14 September 2009, the Driver intentionally drove onto the footpath and drove over the Plaintiff’s right foot. The Plaintiff sustained significant injuries including a severe crush injury to the right foot. This resulted in an extensive soft tissue degloving injury. Consequentially, the Plaintiff required extensive plastic surgery and skin grafts. He also suffered a fractured dislocation in the right mid foot region. This was was treated surgically with multiple joint arthrodesis or fusion. The Plaintiff also received an avulsion fracture of the medium aspect of the right navicular, and a fracture of the base of the right fifth metatarsal bone.

The Plaintiff was transported to Mackay Base Hospital where he had four operations on his foot. He was then transferred to the Royal Brisbane and Women’s Hospital for another two operations. He was eventually discharged from hospital some two months later. The Plaintiff sued the Driver and his Insurer for damages for personal injuries and consequential loss as a result of the motor vehicle incident. At the time of the trial the Driver had died. The Insurer was defending the Claim on the basis of self-defence, specifically defence of another.

At a three day trial heard in the District Court at Mackay, the Plaintiff, his friends, the Driver’s Fiancée, his Grandmother and a next-door neighbour gave oral evidence. The deceased Driver’s evidence was admitted by way of a statement he had given to Police. This meant that the Plaintiff was unable to cross-examine the Driver.

Driver and His Family Attacked by Plaintiff and his Friends

Her Honour did not accept the version of events given by the Plaintiff or his friends because it lacked plausibility. Instead, Her Honour accepted the defence version of events. The Plaintiff and his two friends were walking down the street when the Driver backed out of his driveway, nearly hitting them. The trio became angry and hit the car and abused the Driver, who in turn abused them back. The trio alleged that the Driver went and got a gun, Her Honour did not accept that, because there was evidence that the Driver did not own a gun or have a gun licence.

The Driver drove off and an argument began between the Driver’s Fiancée and the trio. He then came back to check on his Fiancée and their baby, he found the trio on the verandah of the house. The Driver approached the men and there was a fight. After the fight, the trio proceeded to abuse the Driver and his Fiancée, indicating that they would come back later that night and they would kill them. The trio walked off.

That night the trio returned to the Driver’s house. The Driver’s Fiancée and Grandmother were putting the bins out. They noticed some men, including the Plaintiff, arriving from the back of the house and saw two of the men pull palings from a fence to use as weapons. The Plaintiff had a gun (which was actually a replica). The Driver’s Grandmother hid in her car, the Plaintiff approached her and smacked the gun on the car window. The men were assaulting the Fiancée and Grandmother.

Driver Claimed Driving Over Plaintiff’s Foot was in Self-Defence

The Driver jumped in his car and revved the engine to deter the attack on his Fiancée and Grandmother. The Plaintiff’s friends stopped their assaults, the Plaintiff did not. The Fiancée and Grandmother were in fear of their lives. The Driver drove his car up onto the footpath and into the Plaintiff. He pinned the Plaintiff to a fence, which caused an injury to the Plaintiff’s foot. The Driver acted to defend his Fiancée and Grandmother. So whilst legally the Driver assaulted the Plaintiff, that assault was justified because the Driver was acting in defence of his Fiancée and Grandmother.

It was accepted that a car is a dangerous weapon and that any act of self-defence must not be disproportional to any potential attack. However, on the night in question, a group of armed angry men confronted the Driver and threatened to kill him and his family. Three angry men blocked the Driver’s path. Therefore, he could not just drive off in his car, nor get out of his car and fight them. The Driver’s actions were reasonably necessary to protect his Fiancée and Grandmother. Accordingly, the Driver was able to establish that driving over the plaintiff’s foot was self-defence.

Driving Over Plaintiff’s Foot Self-Defence

Consequently, the action in negligence was abandoned. In the interests of completeness, Her Honour calculated the quantum of damages that the Court would have awarded the Plaintiff if the claim were successful. However, the Plaintiff failed to establish the Driver’s liability. Therefore, the Court did not award the Plaintiff those damages. The Court rejected the claim and ordered the Plaintiff to pay the Insurer’s costs of having to run the trial.

This case highlights the importance of understanding the distinction between liability and quantum. By analogy to a stereo system, liability is akin to the on/off switch, whilst quantum is the volume knob. If the stereo is not on, it simply does not matter how loud the volume is turned up. It also goes to show that the law of compensation will not benefit those who are injured whilst undertaking criminal enterprise.

Corowa v Winner & Anor [2019] QDC 135

Driving Over Plaintiff Foot Case