The plaintiff had been drinking after a football game with a group of friends. The group sought to hail a cab to return to the city after deciding not to enter a nightclub because of the price of the cover charge. The cab driver initially drove past and declined, but then after a short distance completed a “U” turn and returned. As the cab approached for the second time the plaintiff moved onto the road and was struck by the vehicle. The plaintiff’s head struck the curb and he was rendered unconscious and had little recollection of events.
 Turning to contributory negligence, the defendant relied on s 47 of the Civil Liability Act 2003. I accept that the plaintiff was intoxicated for the purposes of that section, but in my opinion, the plaintiff has rebutted the presumption of contributory negligence provided by that section by establishing that his intoxication did not contribute to the defendant’s breach of duty. The relevant breach of duty was failing to keep a proper look out, and had nothing to do with the degree of inebriation of the plaintiff. The correct approach to s 47 is that outlined by Fryberg J in French v QBE Insurance (Aust) Ltd.8 The defendant relied on Hawira v Connolly,9 but the facts in that case were completely different and I do not consider that that decision provides any guidance in the present circumstances. Section 47 therefore does not apply.
 I think the position was simply that the defendant was driving along on the assumption that no one was going to come out on to the road to hail him and without keeping those on the footpath under observation in case any of them did, and the plaintiff, in coming out on to the road to hail him, to some extent came into his path without this being noticed by the defendant until it was too late to take evasive action. In those circumstances, it follows that the plaintiff had in fact placed himself into the path of the defendant’s vehicle, albeit in circumstances where his presence ought to have been obvious to the defendant, and where he was only slightly too far out; the latter is apparent from the fact that he must have been struck by essentially the very corner of the front of the defendant’s vehicle, as is apparent from the location of the dent in the photograph.
 This may be a common practice for some people seeking to hail a cab or at least a practice that some people engage in, but I think it still involves a failure to take reasonable care for one’s own safety, and on that basis the plaintiff was guilty of contributory negligence at common law. The only practical effect of his intoxication was that it probably prevented him from realising in a timely way that the defendant’s vehicle was not slowing down so that it would be a good idea to step back out of its path.10
 With regard to apportionment, I do not consider that this is a situation where a driver of a vehicle was suddenly unexpectedly confronted with a person who had thrust himself into his path; on the contrary, it was a situation where it was reasonable to expect at least the distinct possibility that someone on the footpath would come out onto the road to attempt to hail the cab driver, and the defendant had failed to keep a group of potential hailers under observation, and had not realised that one of them had done so until it was too late to take effective evasive action. Bearing in mind the high duty which falls on the driver of a motor vehicle because of its great capacity to cause injury to a pedestrian in the event of a collision,11 I consider this was more serious negligence on the part of the defendant overall, and consider the bulk of the responsibility for the plaintiff’s injury should fall on the defendant. Nevertheless, the plaintiff did deliberately place himself, if only to a small extent, into the path of an approaching vehicle in circumstances where his ability properly to assess that it was safe to do so was impaired by alcohol, and this was inappropriate behaviour even if it is not uncommon for people seeking to secure the services of taxis. The apportionment against the plaintiff should be more than minimal, and I will allow contributory negligence of 20%.
8  QSC 105 at , -.
9  QSC 4.
10 Consistent with the opinion expressed by Dr Griffiths: Exhibit 2 p 4.
The plaintiff was 33 years of age at the trial.
His Honour made comment that the plaintiff’s conditions did not fit neatly into the categories provided under the schedule 4 of the regulations and His Honour considered s.6(3) of the regulations and item 88 by way of comparison.
Furthermore, His Honour was not persuaded given Dr Chalk’s opinion that there was a separate mental injury. His Honour categorised the psychological consequences as an adverse consequence of the physical injury, noting that ordinarily the physical injury would include the scar ((7cm) – 4% AMA 5)).
In the circumstances, an ISV of 10 was allowed ($11,000.00).
The plaintiff had a poor work history and records. A past allowance of $4,400.00 per annum for 6 and half years was made ($28,600.00). For the remaining 30 years a global allowance of $45,000.00 was allowed. No separate allowance was made for superannuation.
Brisbane Barrister – David Cormack