|ORDER:||Judgment for the Plaintiff in the amount of $119,324.50|
|CATCHWORDS:||TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCCIDENT CASES – where the plaintiff accompanied the first defendant on a motorcycle which the first defendant was driving – where the motorcycle was involved in a road accident – where the plaintiff suffered injuries as a result of being thrown from the motorcycle – where both plaintiff and first defendant were intoxicated at the time of the accident – whether the plaintiff is guilty of contributory negligence where the plaintiff has suffered a 10 per cent whole person impairment – where the plaintiffs injuries have reduced her earning capacity to some extent – whether the plaintiff has discharged the burden upon her
Intoxication – First Defendant
Mr Chamberlain stopped his vehicle when he saw the accident take place and he went to assist the plaintiff and the first defendant. He checked on the first defendant and said that he “could clearly smell alcohol on him … he smelt like a bar mat”.
On 10 June 2011 the first defendant pleaded guilty in the District Court at Brisbane to a charge that he had caused grievous bodily harm to the plaintiff and, at the time, he was adversely affected by an intoxicating substance, namely, alcohol, and that the concentration of alcohol in his blood at the time equalled 134 milligrams of alcohol per 100 millilitres of blood. In other words, he had a blood alcohol concentration of 0.134 per cent. The first defendant’s blood sample was taken at approximately 4am on 7 July. This is compelling evidence of the first defendant’s level of intoxication.
The plaintiff required that the second defendant demonstrate that the chain of custody of the blood sample taken from the first defendant was intact. I am satisfied that the evidence called from Senior Constable Reeves, Dr Imeson, Sergeant Kuskie, Ms Woolcock and Mr Buchanan demonstrated that the blood which was taken from Mr Skouboudis was the blood which was tested and the blood which showed a blood alcohol concentration of 0.134 per cent.
The plaintiff challenged a number of witnesses in cross-examination about the effect that the presence of benzyl alcohol might have had on the reading, together with other matters relating to the reliability of the testing mechanism. All of those challenges were rebuffed by the witnesses and no evidence was called by the plaintiff to demonstrate that there was any reason to doubt that a true reading had been obtained of the level of alcohol in the first defendant’s blood.
Evidence was called from Dr Griffin, who is a clinical forensic medical officer for Brisbane and Ipswich. With respect to the effect that such a blood alcohol concentration would have, he said:
“A person with a blood alcohol concentration of 0.134% will have depression of the higher centres of the brain, causing mood and behavioural changes leading to inappropriate driving for the prevailing conditions (driving too quickly, aggressive driving, increased risk taking). There would be marked impairment of perception, judgment, and the ability to concentrate and focus attention of multiple tasks at any one time. There would also be some degree of muscle incoordination.”
Dr Griffin had been asked by the solicitors for the second defendant to undertake a calculation which would allow for an estimation of the blood alcohol content of the first defendant at the time of the accident. After taking into account all the variables available to him, his estimate was that the first defendant’s blood alcohol content at the time of the crash was in the range of 0.1515 to 0.1865 per cent. He also expressed the opinion that:
“15. An individual with a BAC between 0.15 and 0.18 may have emotional lability or exaggerated emotions with impaired balance, a staggering gait and slurred speech.
16. A seasoned alcoholic while still impaired in performing complex tasks may have fewer observable signs of intoxication due to their learned ability to mask them (slowing their speech and gait, making very deliberate manoeuvres). This makes it harder for an observer to determine their indicia of intoxication.
17. Further, the state of intoxication of the observer may also adversely influence their ability to adequately judge another’s level of intoxication.”
The plaintiff maintained that the first defendant told her that he had not been drinking. She summarised her many statements in evidence about his sobriety in her submissions in this way:
“My driver had no observable outwardly [sic] signs of intoxication and he rejected an offer of a drink from me when I asked him – ‘cause I’m a very generous person – I said, “Would you like a drink?” He said, “No. I’m not drinking because I’m riding my motorcycle.”, and I took that at face value … He was a tall thick set Greek man, very very tall, fit looking man, well dressed, well groomed, and a very nice man. He wasn’t at all sleazy.”
I do not accept that the plaintiff’s account of her conversation with the first defendant is correct. She was intoxicated and, given her many references to the appearance of the first defendant, quite impressed by him.
The first defendant’s blood alcohol concentration reading at 4am on 7 July was 0.135 per cent. The plaintiff’s challenge to that reading fails for the reasons given above. I accept, on the basis of Dr Griffin’s unchallenged evidence, that at the relevant time:
(a) the first defendant’s blood alcohol concentration reading would have been at least 0.15 per cent, and
(b) he would have been experiencing a “marked impairment of perception, judgment, and the ability to concentrate and focus attention of multiple tasks at any one time” and so was “incapable of exercising effective control of the vehicle”.
It follows, then, that the first defendant was intoxicated within the meaning of the CLA.
The plaintiff’s case is that she was offered a lift to the Chalk Hotel by the first defendant. The first defendant told her that he was driving a motorcycle before they left the bar at the Sofitel. She knew he was going to be the driver. In accepting the lift and then riding the motorcycle as the pillion passenger she relied on the care and skill of the first defendant.
As has been noted above, the plaintiff maintained that, when she met the first defendant, he was sober. Given that she was already intoxicated at that stage, could she have been aware, or ought she reasonably have been aware, that he was intoxicated? Dr Griffith said: “…the state of intoxication of the observer may also adversely influence their ability to adequately judge another’s level of intoxication.” While that may be the case, that is not the test to be applied.
In Joslyn v Berryman the High Court considered the application of s 74(2) of the Motor Accidents Act 1988 (NSW). It requires a finding of contributory negligence if an injured person was a voluntary passenger in a motor vehicle and “was aware, or ought to have been aware” that the driver’s ability to drive was impaired by alcohol. That section is not materially different from s 48(1)(c) of the CLA.
McHugh J said “… s 74(2) directs the court to determine whether the passenger ought to have been aware of the driver’s impairment. This introduces an objective test.” He elaborated on this later in his reasons:
“ The issue in a case like the present is not whether the passenger ought reasonably to have known of the driver’s intoxication from the facts and circumstances known to the passenger. The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise. In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care …
 Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.” (emphasis added)
Although they did not elaborate on it, Gummow and Callinan JJ referred to the test in s 74 as being “clearly objective”.
The evidence of Dr Griffith establishes that the first defendant’s state of intoxication was such that an “an ordinary reasonable person – a sober person” would have been aware that he was intoxicated.
Has the plaintiff established that she could not reasonably have been expected to have avoided relying on the first defendant’s care and skill?
This was not the subject of any submissions by the plaintiff. In any event, her own evidence was that her decision to go with the first defendant was entirely voluntary.
I am satisfied, then, that the second defendant has established all matters necessary for the operation of s 49 and that the plaintiff has not rebutted any of the presumptions in s 47 or s 48. It follows that the minimum reduction of damages under s 48(4) is increased by s 49(2) to 50 per cent.
What should the reduction be?
The effect of s 48(4) when s 49 applies is to reduce the damages by 50 per cent “or a greater percentage decided by the court to be appropriate in the circumstances of the case.”
The second defendant argued that the claim should be defeated entirely by finding that the contributory negligence of the plaintiff was 100 per cent. Such a decision is permitted by s 24 of the CLA. The efficacy of such a provision has been upheld in a number of decisions including Mackenzie v Nominal Defendant, but I share the doubts expressed by the authors of Fleming’s The Law of Torts. It is not a matter upon which I need delay as I have come to the conclusion that it would not be just and equitable to decide on a reduction of 100 per cent.
 (2003) 214 CLR 552
 Ibid at 
 Ibid at 
 (2005) 43 MVR 315;  NSWCA 180
 10th edition, Thomson Reuters, Sappideen and Vines (ed)
The matters which should be considered when deciding upon the apportionment of fault have been considered on many occasions. The leading decision is that of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd where the following appears:
“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’ …
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage: …. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
In referring to the effect of legislation which permitted the apportionment of liability Hayne J, in Wynbergen v Hoyts Corporation Pty Ltd, identified the following factors:
(a) there must be a comparison of the degree to which each party has departed from what is reasonable,
(b) regard must be had to the relative importance of the acts of the parties in causing damage, and
(c) the whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination.
The approach in Podrebersek is still relevant notwithstanding the changed legislative landscape. The matters which are relevant to the comparison which must be undertaken include:
(a) the degree of intoxication of both parties – at the time they met and at the time of the accident their respective levels of intoxication were both high and conduced to a real reduction in the capacity to recognise and respond to threats when driving,
(b) the first defendant was more than likely exhibiting indicia of intoxication at the Sofitel,
(c) the plaintiff accepted a lift from a person who was exhibiting those indicia,
(d) the plaintiff knew that the first defendant was intoxicated – Mr Deverey’s evidence supports this,
(e) the first defendant operated the motorcycle in a reckless manner,
(f) the first defendant as the driver had the greater potential to cause injury, and
(g) the plaintiff had opportunities to decline to travel with the plaintiff or to continue travelling with him.
 (1985) 59 ALR 529
 Ibid at 532-533
 (1997) 72 ALJR 65; 149 ALR 25
 Ibid at 65; 29
 See Joslyn v Berryman per Hayne J at  and Mackenzie v Nominal Defendant per Giles JA at .
Another inquiry was identified by Giles JA in Mackenzie v Nominal Defendant. That was a case involving a motorcycle in which both parties were heavily intoxicated after having been drinking together for some time. He said:
“ In many cases, the plaintiff’s intoxication will not ameliorate his culpability or the causal potency of his contributory negligence.
The further enquiry must be into the circumstances in which the plaintiff became intoxicated.
A plaintiff who goes on a drinking spree with the driver, contemplating from the beginning that he will be a passenger in a vehicle driven by the driver, will only add to his departure from the standard of care of the reasonable man. A plaintiff who becomes intoxicated when being the passenger of an intoxicated driver is not in contemplation can say that his departure from the standard of care of the reasonable man is not complete, and perhaps that his conduct was less important in causing the damage. Although in a different context, such an enquiry underlies the dicta of Macrossan CJ in McPherson v Whitfield and of Lee J at 484–5 in the same case.” (emphasis added)
The plaintiff was, most likely, intoxicated when she met the plaintiff. I find that she had been drinking with the first defendant but that was at a time when, on the evidence of Dr Griffith, both would have already have become intoxicated. While there was evidence that the plaintiff and her friend had an intention of moving from the Sofitel Hotel to the Chalk Hotel at some time there was nothing to suggest that the plaintiff contemplated travelling with the first defendant until the time he offered to take her.
After taking into account the matters referred to above, I conclude that the plaintiff’s damages should not be reduced by any more than the amount required by s 49, that is, 50 per cent.
David Cormack – Brisbane Barrister