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Written by Peter Carter

November 25, 2011

On 27 August 2004, Karla Kalimnios was driving home along Logan Road Upper Mount Gravatt in peak hour evening traffic when knife-wielding Jason Ewen – who had gone on foot to retaliate against another driver – ran into the path of her car.
He died from his injuries a week later. What happened in the moments before the collision is a telling account of how uncontrolled responses to trivial traffic interactions can rapidly escalate into a tragedy with life-changing consequences for many.

Ewen had come close to bumping his Nissan into a Toyota utility as they were both heading outbound near Garden City. The Toyota driver made a “finger” gesture and mouthed an obscenity at him. Both stopped at the Klump Rd lights where an enraged Ewan jumped out of the Nissan to escalate the confrontation with a knife. At the next set of traffic lights, Ewen was again out of his car, knife in hand and then threw it at the Toyota windscreen.

He ran off against the southbound traffic flow in Logan Road with Toyota man giving chase. Which brings to the point of impact: Ewen was mortally wounded but Karla herself sustained injuries. It is not clear from the judgment of as to whether these are physical, psychological or both.

She initiated a lawsuit claiming $660,000 – against the estate of the dead road-rager – exactly three years later after having only consulted lawyers 5 days before. Earlier this month, the estate applied to the District Court to have the claim dismissed as the injured driver had – so the defence contended – no real prospects of any financial recovery and urged for her claim to be summarily dismissed.

To this end, the defendant pleaded plene administravit,  that the estate – which realised a total net value of only $52,600 – had been fully administered in August 2005 with no remaining funds. In response, the plaintiff asserted that there was an asset against which she could potentially collect, namely the household insurance policy of the deceased’s parents, the insurer being required to indemnify the deceased.

It was common ground that the deceased was an “insured person” under the policy as he was a child normally living there at the relevant time but the insurer CGU was not joined as a party.

It was Ewen’s estate that somewhat awkwardly contended his conduct had been a criminal, willful or malicious activity and that as a result, the insurer would disclaim liability in reliance upon an exclusion in the household policy.  At issue was whether or not the deceased’s conduct immediately prior to being collected by the plaintiff’s vehicle was still part of a criminal act, for example, an “assault”, or whether the assault had ended with the hurling of the knife at the Toyota.

The court ultimately left open this point and concluded that the parent’s household policy may well respond in favour of the deceased’s liability to the injured driver. As a result, it was not satisfied that the estate was “fully administered” as alleged and thus there was no bar, at this stage of the proceedings, to the matter proceeding to trial.

While the plaintiff’s claim has been given the green light to proceed, her eventual success or otherwise will in fact turn upon whether or not the exclusion clause in the CGU policy does in fact apply.  Unless the insurer pays out, any judgement against the estate will likely prove worthless. Road rage is a curse. Stay calm in traffic!

Kalimnios v Ewen [2011] QDC 264 Rafter SC DCJ 11/11/2011

Categories: Personal Injury , Litigation & Law Practice

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