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Supreme Court of Victoria |
Last Updated: 23 November 2009
AT MELBOURNE
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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NEGLIGENCE - application for indemnity by Transport Accident Commission under s 104 of the Transport Accident Act 1986 - motor vehicle registered in South Australia - payments made by the Commission to injured occupant of vehicle application against alleged driver's estate - traffic accident where utility rolled over - two occupants - one killed and one injured - dispute as to who was driving - determining who was driving where no direct evidence of who was driving at the time of the accident -- drawing inferences to determine driver - both occupants intoxicated - contributory negligence of passenger in accepting a ride - objective test - whether passenger obliged to make inquiries of the driver as to his consumption of alcohol - whether passenger ought to have been aware that driver's ability was affected by alcohol - relevance of a culture of drinking by driver and passenger - matters to be taken into account - test for determining appropriate degree to which injury of passenger was attributable to act, default or negligence of driver - defence of volenti non fit injuria - appropriate test to determine defence - s 104 Transport Accident Act 1986; s 26 Wrongs Act 1958.
EVIDENCE - injured occupant of vehicle involved in accident unable to recall accident or who was driving - injured occupant not a party to the proceedings - admissibility of statements made by injured occupant to police and ambulance driver immediately after the accident about who was driving - use to which such statements may be put - use in assessing whether to accept injured party's evidence - acceptance of injured occupant's evidence – s 35 of Evidence Act 1958.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Wisewould Mahonys
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For the Defendant
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DLA Phillips Fox
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Hammer v S Hoffnung & Co Ltd (1928) 28 SR (NSW) 280
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529
The Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39
Williams v Government Insurance Office of New South Wales [1995] NSWSC 144
Introduction and Summary
1 The plaintiff, the Transport Accident Commission, seeks to be indemnified by the Estate of Hayden Ewer (deceased) for compensation it has paid to and on behalf of Simon Bayne, who was badly injured in an accident at about 11.40 pm on 3 March 2006 when a Toyota Highlux utility Mr Bayne was travelling in overturned on the Natimuk-Apsley Road, Bringalbert.
2 The other occupant of the vehicle, Hayden Ewer, was killed in the accident. There is a dispute as to who was driving the utility. The utility was registered in South Australia to Simon Bayne's employer and was primarily used by Mr Bayne.
3 Under s 104 of the Transport Accident Act 1986 the TAC is entitled to be indemnified by the driver of a vehicle registered in another State in certain circumstances. The TAC allege that Mr Ewer was the driver of the utility and that his negligence caused the accident and the injuries to Mr Bayne, entitling the TAC to be indemnified.
4 There are five basic issues in the case:
(a) whether Mr Ewer was the driver of the utility;
(b) whether Mr Bayne's injuries were caused by Mr Ewer's negligence in driving the utility;
(c) whether Mr Bayne voluntarily agreed to accept the risk of injury involved in riding in the utility with Mr Ewer;
(d) whether Mr Bayne's contributory negligence contributed to his injuries; and
(e) if so, what proportion of the Commission's liability to Mr Bayne should be attributed to his negligence.
vehicle, then there was negligence on the part of Mr Ewer.[1]
6 Taking this concession into account, for the reasons that follow, I find:
(a) Mr Ewer was the driver of the utility;
(b) Mr Bayne's injuries were caused by Mr Ewer's negligence in driving the utility;
(c) Mr Bayne did not voluntarily agree to accept the risk of injury involved in riding in the utility with Mr Ewer;
(d) Mr Bayne's negligence contributed to his injuries; and
(e) 10 per cent of the Commission's liability to Mr Bayne should be attributed to his negligence.
1"> 7 Section 104(1) of the Transport Accident Act 1986 provides:
If an injury or death arising out of a transport accident in respect of which the Commission has made payments under this Act arose under circumstances which, regardless of section 93, would have created a legal liability in Victoria or elsewhere in a person (other than a person who is entitled to be indemnified under section 94) to pay damages in respect of any loss suffered by reason of the injury or death, the Commission is entitled to be indemnified by the first-mentioned person for such proportion of the amount of the liability of the Commission to make payments under this Act in respect of the injury or death as is appropriate to the degree to which the injury or death was attributable to the act, default or negligence of the first-mentioned person.
8 The relevant elements that the Commission must establish are as follows:
(a) The Commission has made payments in respect of an injury suffered by Mr Bayne arising out of a transport accident.
(b) The injury suffered by Mr Bayne would have created a legal liability in Victoria or elsewhere in a person to pay damages in respect of any loss suffered by reason of the injury.
(c) The amount of the liability of the Commission to make payments under the Act in respect of the injury.
(d) The degree to which the injury was attributable to the act, default or negligence of the person.
(e) The proportion of that amount that is appropriate to that degree.
9 The defendant is named as the estate of Hayden Ewer deceased.[2]
The particulars of negligence
10 The TAC alleges that the accident was caused by the negligence of Mr Ewer in the care and management of the vehicle. The particulars of negligence are as follows:
(a) Failing to maintain control of the vehicle.
(b) Failing to steer the vehicle so that it remained on the bitumen.
(c) Failing to keep a proper lookout.
(d) Over-reacting when the wheels of the vehicle went onto the gravel shoulder.
(e) Travelling at an excessive speed in the circumstances.
(f) Failing to make adequate allowance for the conditions at the time.
(g) Driving with a blood alcohol content in excess of the legal limit.
(h) Failing to comply with the provisions of the Road Safety Act and the regulations made there under.
11 As indicated above, the defendant concedes that if Mr Ewer was driving he was negligent. The defendant bases this concession on Mr Ewer's blood alcohol limit which I will come to shortly. The defendant, however, expressly takes issue with the allegation that Mr Ewer was travelling at an excessive speed. Although the defendant concedes negligence if Mr Ewer was driving, the particulars of negligence are still relevant when I come to the issue of determining the proportion of contributory negligence.
12 The defendant alleges that if Mr Ewer was the driver and if as a result of driving the vehicle there was negligence on the part of Mr Ewer (both of which are denied), then Mr Bayne’s injury, loss or damage was caused or contributed to by his own negligence. The particulars of his alleged negligence are as follows:
(a) Travelling as a passenger in a motor vehicle driven by Mr Ewer when the injured person knew or ought to have known that Mr Ewer was affected by a prior consumption of intoxicating liquor to such an extent so as to render him incapable of adequately managing or controlling the course, speed or direction of the vehicle.
(b) Failing to wear any or a properly adjusted seatbelt.
(c) Allowing himself to be driven by a person under the influence of intoxicating liquor.
(d) Being under the influence of intoxicating liquor to the extent that in the event of an emergency he could not take care for his own safety.
(e) Failing to use common sense.
(f) Knowingly and voluntarily placing himself in a dangerous situation.
13 Initially it was alleged that he failed to take reasonable precautions for his own safety. That particular was withdrawn by consent of the parties.
14 During final addresses, the defendant withdrew the allegation of contributory negligence of failing to wear a seat belt.
15 The defendant further pleads that if Mr Ewer was the driver of the vehicle and if as a result of driving the vehicle there was negligence on the part of Mr Ewer, then Mr Bayne consented to or acquiesced in any breach of duty committed by Mr Ewer and voluntarily incurred the risk of injury, loss and damage occasioned thereby. The defendants allege that Mr Ewer had been drinking for some hours prior to the accident and that he was so affected that he was unable to drive, manage or control the vehicle with proper care and skill and was so affected at the time of the commencement of the journey that led to the accident.
16 During final addresses, the defendant conceded that if Mr Ewer was driving then there was negligence on the part of Mr Ewer. The defendant said that the admitted blood alcohol level of at least .18 per cent meant that Mr Ewer was negligent in driving whilst his ability to do so was impaired by him being adversely affected by alcohol. The defendant contends that if Mr Ewer is found to be the driver then the sole defences are volenti and contributory negligence.
17 The plaintiff submits that a defence of volenti requires that the passenger have a full knowledge of the extent of the risks involved in travelling as a passenger in the vehicle driven by the defendant. The plaintiff contends that volenti is not satisfied if the passenger knows of a risk but not the full extent of the risks.
18 The defendant alleges that at the time the journey commenced until the occurrence of the accident, Mr Bayne knew of the facts alleged and further, knew and appreciated the nature and extent of the risk involved in being an occupant of the vehicle. The defendant alleges that therefore Mr Bayne, by entering or remaining in the vehicle, voluntarily undertook a risk of injury. The defendant acknowledges in its plea that the passenger must know of the extent of the risk involved and not merely that the passenger knew there was a risk.
19 The defendant alleges that by reason of the matters alleged, Mr Bayne voluntarily agreed to ride in the vehicle as a passenger and he agreed to accept the risk of injury involved therein. The defendant alleges that accordingly, the collision did not constitute a breach of any duty owed by Mr Ewer to Mr Bayne, Mr Bayne voluntarily encountered and accepted the risk of sustaining the injury, loss or damage he may have sustained and there was no duty of care owed by Mr Ewer to Mr Bayne.
20 The defendant does not admit that the Commission has made the payments alleged. As particulars to that plea, the defendant says that if the Commission has made payments, the defendant does not admit that they were reasonably incurred. Further, the defendant does not admit that the Commission's decision to accept liability to make those payments or compensation was reasonable.
21 Mr Ewer and Mr Bayne were aged 29 and 30 respectively at the time of the accident. Mr Bayne and Mr Ewer were good friends and had known each other for seven or eight years. They would visit each other on most weekends. When Mr Bayne visited Mr Ewer he would stay at his house at Bringalbert.
22 As Mr Bayne played sports on Saturdays, they would usually stay at each other's houses on a Saturday night or during the week. Mr Bayne and Mr Ewer fished together often in Kingston and liked to watch sport on TV. Both activities would involve them drinking together. On fishing trips, they would camp and take alcohol with them. They would each drink between half a dozen cans of scotch and cola or half a carton of scotch and cola on these overnight trips. They would not take beer with them as Mr Bayne preferred scotch and cola. Before the night of the accident, however, Mr Bayne had not attended one of the Friday night bowls games with Mr Ewer at Frances.
23 On the weekend of the accident, Mr Bayne had arranged to stay at Mr Ewer's house. He had also arranged to artificially inseminate some cattle belonging to Mr Nathan Craig who lived about twenty minutes from Mr Ewer. The artificial insemination had been delayed as the cows were not ready but Mr Bayne drove his utility from his home in Lucien in South Australia to Mr Ewer's on the Friday evening, arriving at about 6.30pm. When Mr Bayne arrived, he found that Mr Ewer was about to leave for the Frances bowling club in Frances, South Australia with three friends, Mr Wilson, Mr Burgess and Mr Hockey, who together with Mr Ewer constituted a bowling team. Frances was about twenty five minutes west-north west from Mr Ewer's property. They were about to leave in a vehicle driven by Mr Wilson. Mr Bayne found that Mr Ewer's partner and the mother of his children, Ms Annie McDonald, also intended to travel to Frances. Mr Bayne decided to travel to Frances in his utility and Ms McDonald came with him.
24 Mr Wilson's car arrived at the bowling club at about 7.30p.m and Mr Bayne arrived soon thereafter. The members of the bowling team, Mr Ewer, Mr Wilson, Mr Burgess and Mr Hockey remained at the club. Mr Bayne and Ms McDonald drove down to the Frances Hotel about 600 metres from the bowling club. I will deal with the events at the bowling club before returning to Mr Bayne at the Frances Hotel.
25 Mr Wilson and Mr Burgess gave evidence. Mr Hockey was not called. I gained the most assistance about Mr Ewer's activities from Mr Burgess.
26 Mr Burgess said he was drinking at the bowl's club with Mr Ewer. He said that when he arrived at about 7.30pm he had something to eat at a BBQ provided by the club. He said that the bowling competition began at about 8.00pm and went for around two hours. After the competition, the winners were announced and then he, Mr Wilson, Mr Hockey and Ms McDonald returned to Bringalbert.
27 Mr Burgess said that on the trip from Bringalbert to Frances he had a "traveller" in the car, a can of Melbourne Bitter. He said that Mr Ewer had a "traveller" as well, in his case a can of Hahn Light.
28 At the bowling club at Frances, the bar has an opening in the external wall onto the outside. Mr Burgess said he bought drinks in rounds with Mr Ewer and Mr Hockey. He said that each would take it in turns to buy three cans of Melbourne Bitter. He estimates that he had at least seven or eight cans. He said that he spent about $27 on beer and a can costs $3.50. He said that he estimates that they drank a can about every fifteen minutes whilst playing bowls.
29 Mr Wilson was the designated driver and drove to and from the bowls club. He said that he had only three or four cans of light beer. He, Mr Burgess and Mr Bayne agreed that the purpose of the designated driver was to allow the other passengers to drink as much or as little as they wished.
30 Both Mr Burgess and Mr Wilson said that Mr Ewer bowled the best in their team. This evidence was led to indicate that Mr Ewer's drinking did not appear to affect his bowling abilities. On the other hand, Mr Ewer was the most experienced bowler among them. Also, three of the team were going drink for drink with Mr Ewer. The team lost their competition. Mr Burgess said that on the drive back to Bringalbert, he had another "traveller" of Melbourne Bitter.
31 Mr Burgess who had been drinking drink for drink with Mr Ewer admitted that he had "one or two too many"[3] and that he was feeling "a bit happy."[4] He did not consider himself fit to drive a car.[5]
32 I now turn to the activities Mr Bayne in Frances. Mr Bayne and Ms McDonald gave evidence of this. Neither Mr Wilson nor Mr Burgess knew Mr Bayne and neither saw him during the time he was in Frances. Mr Hockey was not called. When Ms McDonald and Mr Bayne arrived at the Frances bowling club, they met and talked with Mr Ewer. Ms McDonald said that Mr Ewer told them that they were not ready to play bowls and that Ms McDonald and Mr Bayne should go to the nearby Frances Hotel, which they did. There Ms McDonald and Mr Bayne drank beer for some two or three hours.
33 Mr Bayne can not recall how much beer he drank. He said he does not like beer so did not believe he drank much. Ms McDonald said that she and Mr Bayne were the only two drinking in the hotel. Ms Lorraine Oliver was serving in the bar. She was not called as a witness. Ms McDonald said that she and Mr Bayne took turns at buying the beer in rounds. She said that they were drinking pots of heavy beer. She estimated that they had not less than seven pots each.[6] She was asked whether it could have been as many as ten or twenty and she said not twenty "that's for sure. Ten, I don't know, honestly."[7] She said that Mr Bayne went outside for a smoke and returned smelling of marijuana.
34 She said that she was not adversely affected by alcohol but did say on the other hand that she was "pissed, but not badly affected".[8] She said that she considered someone grossly affected if they were "absolutely legless and you can't talk and you can't move your arms and legs and you are spewing".[9] She said that Mr Bayne drank the same amount of beer that she did.
35 After some two hours or so at the hotel, Ms McDonald and Mr Bayne decided to return to the bowls club. On returning to the utility to drive back to the bowling club, which was parked on a side street to the hotel, they discovered a tyre of the utility was flat. Ms McDonald and Mr Bayne went back into the hotel where Ms McDonald telephoned Mr Ewer at the bowling club. She summoned him to help change the tyre.
36 She said that when she spoke to Mr Ewer on the telephone about changing the spare tyre, he asked her to get money out of the ATM so that he could buy some more drinks. Mr Burgess heard the announcement at the bowls club that Mr Ewer was wanted on the telephone and saw Mr Ewer leave. Mr Ewer went to the hotel and Ms McDonald says that Mr Ewer and Mr Bayne left the bar to change the tyre of the utility. Ms McDonald was unable to say who did what but said that both changed the tyre. Mr Bayne admitted that in his record of interview with the police he said that he changed the tyre.
37 After they had changed the tyre, both Mr Ewer and Mr Bayne went back into the bar and bought a slab (that is twenty four cans) of a mixed spirit of Bourbon and Cola.[10] Ms McDonald saw the slab placed in the back of the utility.
38 She said that the three of them drove back to the bowls club. In evidence she said that Mr Ewer was driving. She admitted, however, that in her statement to the police made around two weeks after the accident, she said that she did not know who drove back to the bowling club. If Mr Ewer did drive, I infer that Mr Bayne must have given the utility keys to Mr Ewer to enable him to drive the utility. At the bowling club, Mr Ewer told Ms McDonald that he would drive the utility back to his place. Ms McDonald agreed that two weeks after the accident she told the police that Mr Ewer looked fine to her and he told her that he had had a few drinks but that he was fine to drive Mr Bayne home because Mr Bayne had had more to drink.[11] She agreed that Mr Ewer was not the designated driver. She said that Mr Ewer was a little annoyed that he had to drive Mr Bayne home.[12] She said that she went home in Mr Wilson's car. She did not see who was driving the utility as it left Frances.
39 Ms McDonald said that she did not think that Mr Ewer was affected by alcohol. She said that if she had thought that Mr Ewer was affected, she would have objected to him driving.
40 Mr Wilson and Mr Burgess, both members of the bowling club, did not see Mr Bayne when he returned to the bowl's club car park with Mr Ewer. Neither saw the utility or saw it leave Frances.
41 The two vehicles then left for Mr Ewer's home. This time Mr Ewer travelled with Mr Bayne in Mr Bayne's utility. There are no witnesses as to who was diving the utility when it left Frances. Instead of driving directly to Mr Ewer's property at Bringalbert, the vehicle went to Mr Craig's farm at Banyeo which lies west south west of Mr Ewer's property at Bringalbert.
42 There are at least two routes to Mr Craig's farm that the vehicle could have taken. One of them was over what could be described as back roads. It is not known which they took. Mr Craig gave evidence that he observed the utility pull up in front of his house through his bedroom window. Mr Craig went outside and saw Mr Ewer leaning against the tray of the utility with a can of drink and cigarette in hand. The driver's door was open. The light was on in the vehicle and he recognised Mr Bayne in the passenger seat. Mr Bayne appeared to Mr Craig to be affected by alcohol. All three had a discussion about the artificial insemination that was to be carried out the next day. Mr Ewer and Mr Craig were joking at Mr Bayne's expense about how the cows were looking forward to Mr Bayne performing the artificial insemination. Mr Craig saw Mr Bayne get out of the utility and reach into the tray of the utility and get out two cans of drink. Mr Craig was surprised how steady Mr Bayne was on his feet compared to his drunken demeanour in the utility. Mr Craig saw both men get back into the utility and depart. He did not see whether Mr Bayne handed a can to Mr Ewer.
43 Mr Craig said that he heard ice rustling when Mr Bayne reached into the back of the utility and drew out the cans.[13] He drew the inference that there must have been an esky or container in which the ice was held.
44 On departing, the utility reversed back and then drove forward towards the cattle yards which were to the left of the house. It shined its lights into the yards as if the men were inspecting the cattle to be artificially inseminated. The vehicle then reversed out the front gate.
45 Mr Craig distinctly recalls that Mr Ewer was driving when the utility left his property.
46 Mr Craig said that the road from his property to the Apsley-Natimuk Road took about fifteen minutes to drive and required a four wheel drive vehicle. He said that it took some skill to manoeuvre. Immediately after the utility left, Mr Craig returned to his bedroom and noticed that the time was 11.14pm.
47 Meanwhile, Ms McDonald and the others were waiting at Mr Ewer's home. After waiting around half an hour, Mr Wilson left with Mr Burgess and Mr and Mrs Hockey. They travelled south along the Apsley-Natimuk Road where they came to the scene of the accident. They found the utility on its roof pointing westerly across the road which runs north south. They found Mr Ewer dead on the west side of the road and Mr Boyne badly injured on the east side of the road. Both men had been thrown from the vehicle.
48 The accident involved the utility rolling over, perhaps as many as two and half times and landing on its roof. The force of the drop onto its roof flattened the roof of the cabin down to about the level of the dashboard. The car finished up with its front pointing across the road, pointing to the west. As indicated above, Mr Ewer was found on the west side of the road south of the utility. Mr Bayne was found on the east side of the road to the north of the vehicle. There were no witnesses to the accident.
49 Senior Constable Heckmann, attached to the Major Collision Investigations Unit at Brunswick, attended the scene of the accident after driving from Melbourne in the early hours of the morning. He gave evidence. He described the scene of the accident including the debris littered on the road surface, the tyre marks in the gravel shoulders of the road and the tyre prints on the bitumen. From these indicators and using surveying equipment and computer mapping software, Senior Constable Heckmann compiled a scale plan of the accident.
50 From this scale plan, Senior Constable Heckmann concluded that the utility initially veered off the sealed pavement on the passenger side of the utility. After about 47 metres of continuing to veer off the road, the utility began to "skid" or "yaw" back onto the bitumen in a clockwise direction. It then crossed to the driver's side of the road before yawing back in an anticlockwise direction. The utility then tipped onto its driver's side and rolled, the driver's side over. The utility rolled over completely without leaving any marks until the rear parts of the utility's tray came back into contact with the dirt and gravel shoulder, which he referred to as "tripping".
51 Gouges on the road surface made by the utility, which was still travelling in a generally northerly direction, indicated to Senior Constable Heckmann that the utility tripped whilst rotating anticlockwise. He said that this evidenced some form of steering input to steer the utility back to the left after the commencement of the yawing. He said that there was no indication of any sudden braking of the utility, either when it left the roadway initially or when it yawed first one way and then the other. He said that as it tripped, the utility was almost 90 degrees to the road and it finished with its side rollover onto its roof.
52 Senior Constable Heckmann said that there were 21 unopened cans of Jack Daniels and cola recovered at the scene.[14] He also said that a stubby holder holding a container of drink was found, but he could not recall whether the container of drink was a can or a stubby.
53 Acting Sergeant Urquhart, also attached to the Major Collision Investigations Unit at Brunswick, gave evidence. He did not attend the scene of the accident or make any observations of the road where it happened. He was provided, however, with material from the scene by Senior Constable Heckmann. This material included notes, a scale plan (viewed electronically) and a series of digital photographs.
54 Acting Sergeant Urquhart's duties with the Major Collision Investigations Unit include making assessments about vehicle speeds and movements from markings at the scene of an accident. From the material he was provided in this case, he concluded that the utility travelling in a northerly direction "left the road to the left, the driver had applied right-hand over-steering input inducing a clockwise yaw. The vehicle continued in a northerly direction. It was evident that the driver had applied a left-hand over-steer inducing an anti clockwise rotation of the vehicle. The vehicle has tripped and commenced to roll over".[15]
55 Acting Sergeant Urquhart determined the speed of the utility at the time of the accident by determining the radius of curvature the tyre marks left as the utility yawed. Using a recognised formula, he concluded that the utility initially left the road at 109 km/hour and was travelling at about 70 km/hour when it tripped and commenced to roll. Acting Sergeant Urquhart said that this formula tends to provide a calculated speed that is conservative by about 10 per cent. While he was of the view that the utility rolled at least once, and had landed on its roof at least one and a half times, Acting Sergeant Urquhart was of the view that it rolled two and a half times.
56 The plaintiff sought to lead evidence from Acting Sergeant Urquhart on his opinion as to who was driving the vehicle. A voir dire was held on Acting Sergeant Urquhart's expertise to give such an opinion. He said that he could give an opinion but it was not based on any scientific criteria that would enable me to test the accuracy of his conclusions. I held that he was not able to give such evidence.[16]
57 Malcolm Alan Hunting, a qualified ambulance paramedic with the then Rural Ambulance Victoria, gave evidence. He attended the scene of the accident. He said that at the scene he ascertained that there was one deceased person to the west of the utility, with a surviving injured person to the south of the utility. Mr Hunting made a full body examination of the injured Mr Bayne, noting that that he was conscious and was aware of his surroundings. He said that there was a laceration to the left of Mr Bayne's skull, small abrasions to his chest and left shoulder and discolouration to the upper back as well as pain. He said that Mr Bayne's eyes reacted to light normally, giving him a normal "PERL", that is, "pupils equal and reacting to light." Mr Hunting gave evidence that if the eyes react abnormally, this can be an indicator of possible head injuries.
58 At the time, Mr Hunting recorded a "question mark" on the subject of whether Mr Bayne had suffered loss of consciousness. He said, however, that Mr Bayne had no recollection of the event. He said that Mr Bayne had good motor response and a Glasgow Coma Scale, which measures the consciousness of a patient, of 13 out of 15 (where 100 per cent is 15 out of 15).
59 Mr Hunting said that he continued to assist Mr Bayne in the ambulance heading towards Edenhope. He said that in the ambulance Mr Bayne complained of abdominal pain and Mr Hunting noted abdominal distension and a drop in blood pressure. He said that his assessment of Mr Bayne was that he was in a critical condition due to possible internal bleeding. Mr Hunting did not notice whether or not Mr Bayne was intoxicated or whether there were any injuries on him which would suggest that he was a passenger or the driver.
60 Dr Wimbury gave evidence. He attended the Edenhope Hospital upon Mr Bayne's arrival at 2.15am. He said that Mr Bayne was immobilised on a spinal board in a head brace in a position that kept his head from rotational movement, as there was concern that he had suffered spinal injury. Dr Wimbury said that he was concerned by the evidence of abdominal distension, which can be a characteristic of spinal injury or also injury to internal organs. He said that he made a note that Mr Bayne had been at the Frances Hotel and had been going to Naracoorte but could not recall whether he had obtained that information from Mr Bayne or another person present. Dr Wimbury gave evidence that Mr Bayne provided him with his name, date of birth, phone number, the name and address of his sister and the information that his parents lived in Adelaide and that he was allergic to penicillin.
61 Dr Wimbury recalls a police officer being present. Dr Wimbury said that no permission was sought from him as to whether Mr Bayne could be asked questions by the police. Dr Wimbury had no recollection of the questions asked of Mr Bayne by the police present or the responses given. He said that he believed that Mr Bayne was in a state of shock. Dr Wimbury attributed two different components of shock to Mr Bayne: neurogenic shock and spinal shock. As a result, Dr Wimbury was of the view that a degree of confusion could be expected.
62 Dr Wimbury gave evidence that it was standard policy at Edenhope Hospital, with any motor accident, to record the blood levels by drawing samples. Three blood samples were taken from Mr Bayne.
63 Mr Smith SC opened the case for the Commission on the basis that Mr Bayne did not know that Mr Ewer had drunk any intoxicating liquor on the night in question. Mr Smith did not open the Commission's case based on its pleaded allegation that Mr Ewer was driving with a blood alcohol content in excess of the legal limit as alleged in particular (g). He did, however, open and led evidence from Mr Bayne that Mr Bayne had been drinking at the Frances Hotel and had drunk beer for two or three hours at the Frances Hotel with Ms McDonald. On the other hand, he did not open an allegation that Mr Bayne had any particular blood alcohol content. On the second day of the trial, the Commission admitted Mr Bayne's blood alcohol reading was .118 grams per 100 millilitres of blood. At this stage, the defendant alleged that Mr Ewer's blood alcohol reading was about .19. The Commission made no admission as to that allegation.
64 At the beginning of the third day of the trial, the Commission clarified its position in relation to Mr Ewer's blood alcohol content and alleged that it was .18. The defendant had alleged it was between .18 and .21 per cent.
65 As a consequence, the Commission alleges that Mr Ewer's ability to drive was adversely affected by the consumption of alcohol. In its final address, the Commission submitted that Mr Ewer's consumption of alcohol was a cause of the accident but that there were also other features of his driving which were negligent that were also a cause of the accident. The Commission contends that those matters are relevant in determining the appropriate portion the Commission is entitled to be indemnified for, if the court finds that Mr Bayne was otherwise contributorily negligent in causing the injuries that he suffered in the accident.
66 The statement of Dr Morris Odell was admitted in evidence by consent of both parties. Dr Odell's evidence was as an expert on the effect of alcohol on driving. On the basis that Mr Ewer had a blood alcohol concentration in the vicinity of 0.18% to 0.21% at the time of the death shortly after the accident, he was of the opinion that Mr Ewer's driving skills would have been adversely affected by the effects of alcohol at the time of the collision and he would have been absolutely incapable of having proper control of a motor vehicle.
67 He also expressed the opinion that Mr Ewer may not have appeared intoxicated at the blood alcohol content (BAC) levels which were detected in his body. He says that appreciation of intoxication is highly variable and depends on the experience and ability of the observer, the degree of intoxication and the subject's susceptibility to the effects of alcohol. He says that if the observer was also intoxicated, the assessment of intoxication would be even more difficult. He said that the gross appearance of intoxication may not be apparent in people who are accustomed to the effects of alcohol and/or have a high inherent tolerance for it.
68 Mr Bayne was unable to recollect much from the events of the evening of the accident. He recollects arriving at Mr Ewer's house and seeing Mr Wilson's car with its passengers about to leave for the bowling club. He recollects driving his utility with Ms McDonald as his passenger from Mr Ewer's property to the Frances bowling club. He says he stayed at the bowling club for about an hour. He says he became tired of watching the bowls and decided to go to the Frances Hotel with Ms McDonald. Ms McDonald on the other hand says that they stayed at the bowling club for only a few minutes and did not get pass the car park. She says that Mr Ewer told her that they were not starting the bowling for a while and suggested that she go to the Frances Hotel. I accept Ms McDonald's version. I do not accept Mr Bayne's version. I consider that Mr Bayne was reconstructing what he thought must have taken place.
69 Mr Bayne says that he has no recollection of how much beer he drank at the Frances Hotel. Ms McDonald on the other hand was able to say that they had at least seven pots of heavy beer. He recollects that a tyre on his vehicle was changed after leaving the Frances Hotel. Despite earlier telling the police in a formal record of interview that he changed the tyre alone,[17] he says that he does not recall whether that was the case. He says that he does not know who changed the tyre. The formal record of interview was conducted on 26 March 2006, some twenty three days after the accident.
70 As indicated above, Ms McDonald says that both Mr Ewer and Mr Bayne changed the tyre. I accept that Mr Bayne does not recollect what role, if any, he played in changing the tyre. He did give evidence about the difficulty in replacing the tyre when sober let alone when drunk.
71 The plaintiff appeared to be leading evidence to establish that if Mr Ewer changed the tyre, that would tend to indicate that he was not adversely affected by alcohol or that Mr Bayne was entitled to conclude from that conduct that Mr Ewer had not been drinking.
72 Mr Bayne said that he does not recall whether or not Mr Ewer had been drinking at the bowling club or before he left his home. Mr Bayne was asked whether he had a drink at the club and he said no. Mr Bayne was asked whether he knew that Mr Ewer would be drinking at the bowls club. He said that he did not know how much they (the bowlers) drank at their bowls nights. He said that he did not know that Mr Ewer was going to go there and drink, but then admitted that that he was sure that Mr Ewer would have had a few drinks but he did not think that Mr Ewer was going to go and get himself above the limit.[18]
73 Mr Bayne was asked whether or not he knew Mr Wilson was the designated driver. He professed to not know what counsel was talking about. I do not accept Mr Bayne's ignorance of this issue. I consider it likely that Mr Bayne was aware that Mr Wilson was the designated driver and that the passengers, including Mr Ewer, were left free to drink as much or as little as they wished that evening.
74 Mr Bayne does not recall any discussion about who should drive his utility back to Bringalbert. He has no recollection of the drive from Frances to Mr Craig's property, save that he believes he was asleep.
75 Mr Bayne has a faint recollection of speaking to Mr Craig. He has no recollection of the manoeuvres the utility performed when leaving Mr Craig's property or who was driving. He admitted that he told the police in his formal record of interview that he thought Mr Ewer was driving when they left Mr Craig's property, but that this answer was based on what he had been told rather than what he remembered.[19]
76 He has no recollection of the utility undertaking the difficult trek from Mr Craig's property to the Apsley-Natimuk road. He has no recollection of driving along the Apsley-Natimuk road. He has no recollection of the accident. He has no recollection of speaking to Mr Hunting, the ambulance officer who attended to him at the scene of the accident. He has no recollection of travelling in the ambulance to the Edenhope Hospital. Under cross-examination, Mr Bayne was asked whether he recalled saying to Mr Hunting, at the scene of the accident and again in the ambulance, that he was not sure who was driving. He denied any recollection of those conversations.[20]
77 He has no recollection of being treated at the Edenhope Hospital. He has no recollection of his conversation with Dr Wimbury at the Edenhope Hospital even though he was treated there by Dr Wimbury for some three hours from about 2.00am to about 5.00am. Dr Wimbury was also able to ascertain from Mr Bayne his name, his address, his sister's partial address and that his parents lived in Adelaide. He said that he has no recollection of speaking to Senior Constable Perry at the hospital[21] although he was able to answer Senior Constable Perry's questions. He told Senior Constable Perry his date of birth and supplied the information that he had been at the Frances Hotel and was heading home and that he was driving. In cross examination, it was put to Mr Bayne that he told Senior Constable Perry when asked who was driving, "I think it was me, I was driving". He said that he could not recollect speaking to Senior Constable Perry.
78 At the hospital, Dr Wimbury assessed Mr Bayne as 15 out of 15 on the Glasgow Coma Scale, which measures the consciousness of a patient. In other words, Dr Wimbury assessed that Mr Bayne was fully conscious and aware of where he was and what was happening to him. He was able to answer questions without difficulty.
79 Mr Bayne says has no recollection of being conveyed by ambulance from the Edenhope Hospital to the Wimmera Base Hospital at Horsham. He has no recollection of arriving at the Wimmera Base Hospital.
80 He says that his first recollection after the accident is being in the Wimmera Base Hospital some days after the accident.
81 Mr Bayne says he has no recollection of the accident or whether or not he was driving. He did say Mr Ewer had often driven the vehicle and that he was a good driver. He has no recollection of who was driving when the vehicle left Mr Craig's property. Mr Bayne did give evidence that the road into Mr Craig's property was more like a bush track and took some skill to manoeuvre.
82 Mr Bayne did confirm that he had told the police in his formal record of interview that he had not drunk excessively at the Frances Hotel and that he was not incapable of driving a vehicle after leaving the hotel. He agreed that he told the police that he was fine, that he wasn't blind drunk or anything and that was that the truth.[22] In his cross-examination, Mr Bayne said he believed that he was capable of driving the utility in spite of the alcohol that he had consumed that night.[23] On the other hand, Mr Bayne said that he was not surprised at his reading of .118.[24]
83 Mr Bayne said that he was confused in some matters as to what he could remember and what he had been told by others, such as the police, had happened.
84 The defendant submits that Mr Bayne's evidence should be assessed in the light that, although he is not a party to the proceeding, he has an interest in its outcome. Mr Bayne has given instructions to his solicitor to take legal proceedings presumably against the estate. Those legal proceedings depend on establishing that Mr Ewer was the driver. It is likely that the defences of volenti and contributory negligence will also be raised. The defendant contends that Mr Bayne’s evidence was biased.
85 Mr Bayne was cross-examined on the inquiries, if any, that he made as to whether or not Mr Ewer was capable of driving his utility home.[25] He readily conceded that he did not make any inquiries of Mr Ewer, although he did reiterate that he had no recollection of this period of time. I took his concession to be that he believed that he would not have made such inquiries of Mr Ewer. He accepted on the basis of their respective blood alcohol readings that he would have been in a better position to assess Mr Ewer's ability to drive than Mr Ewer of him.[26]
86 I was impressed with Mr Bayne. I thought he handled himself with dignity in the face of great adversity. He was often in pain during his evidence but he soldiered on. I believe that he was trying to be truthful. He frankly admitted that he had difficulty in differentiating what he had been told and what he could recall.
87 He has been through a formal police interview. No doubt he has been interviewed by his own solicitor. He has given a statement for this proceeding to the TAC. I expect he has racked his brain reconstructing the night that forever changed his life for the worse over and over again.
88 Mr Bayne said that he could not recall whether or not he was driving. I will return to his evidence shortly. The Commission relies on the evidence that Mr Ewer drove Mr Bayne's car from the Frances Hotel back to the bowling club's car park to establish that Mr Ewer was the driver. He had arrived in Mr Wilson's car and in the normal circumstances may have been expected to return with Mr Wilson.
89 Ms McDonald admitted that she was affected by alcohol. Mr Bayne had drunk the same amount of beer that she had. When Mr Ewer arrived at the bowls club's car park, he informed Ms McDonald that he intended to drive Mr Bayne home. Ms McDonald said that Mr Ewer was annoyed at having to do so when Mr Bayne was not able to. No witness was able to say who was driving the utility when it left the car park to return to Bringalbert. As mentioned above, Mr Cain saw the utility drive into his driveway and when he went out to the vehicle saw Mr Ewer standing by the driver's door with Mr Bayne in the passenger seat. He saw Mr Ewer drive out. Mr Bayne admitted that Mr Ewer was used to driving his utility.
90 The Commission relies on the presumption of continuance and asks the Court to imply that Mr Ewer was still driving some twenty minutes later when the accident occurred.
91 The defendant says that no such inference can be drawn. It says that the utility could have stopped so the occupants could relieve themselves or for any other reason at which point Mr Bayne could have taken over the driving.
92 The defendant also contends that at the Edenhope Hospital, Mr Bayne told Senior Constable Perry, who was obtaining details of the accident, after correctly answering questions about his name and such, said in response to the question, "Were you driving the ute in the accident?", "I think it was me, I was driving."[27]
93 Mr Ewer's estate sought to tender the evidence of Mr Perry and in particular, this question and answer. The Commission objected to the evidence on the grounds of hearsay. The Commission submits that Mr Bayne is not a party and his statement cannot be treated as an admission.
94 The defendant contends that in any event, Mr Perry's evidence is admissible under s 35 of the Evidence Act 1958 which provides:
[351 Evidence of previous statement of witnessIf a witness upon cross-examination as to a former statement made by him relative to the subject-matter of the cause or prosecution and inconsistent with his present testimony does not distinctly admit that he has made such statement, proof may be given that he did in fact make it. But before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and he must be asked whether or not he has made such statement.
95 The Commission concedes that the statement is admissible under the Evidence Act 1958 but only for a limited purpose. It says that it is not admissible of the fact of whether or not Mr Bayne was driving, but was only admissible to nullify the evidence of Mr Bayne that he could not recall whether or not he was driving the utility. The Commission relies on Hammer v S Hoff-hung & Co Ltd[28] and Cross on Evidence.[29]
96 The learned author of Cross on Evidence, Mr J D Heydon, says that:
If a statement is admitted or proved under this section, it merely impugns the testimony of the witness under cross-examination (unless the witness is a party, in which case the statement may amount to an admission); it does not constitute evidence of the facts stated.[30]
97 As was pointed out in Hammer v S Hoff-hung & Co Ltd:
It would be an extraordinary result if the statements of a witness made on oath at the hearing of the cause were liable to be disbelieved because he had made contradictory statements out of Court, and yet those contradictory statements made out of Court, and not made under the sanction of an oath, might be accepted as evidence on the issues to be decided.[31]
98 I accept Mr Bayne's evidence that he cannot recall who was driving, despite the evidence of Senior Constable Perry.
99 In that event, the evidence on the issue of who was driving is limited to that described above. In my opinion, on the balance of probabilities, that evidence establishes that Mr Ewer was the driver of the vehicle at the time of the accident.
100 As indicated above, the estate conceded that if Mr Ewer was found to be the driver, then he was negligent as alleged because his ability to drive was adversely affected by the consumption of alcohol. This raises the two remaining issues of contributory negligence and volenti.
101 For reasons that will become apparent when discussing contributory negligence, I find that if Mr Bayne did realise that there was a risk driving with Mr Ewer, he did not realise the full extent of the risk. In particular, I do not find that Mr Bayne knew that Mr Ewer had consumed around eight or more cans of full strength beer as well as a can of light beer and that Mr Ewer was "absolutely incapable of having proper control of a motor vehicle".[32] The quotation is from the expert's report of Dr Morris Odell on the impact of Mr Ewer's consumption of alcohol on his driving abilities. As discussed above, Dr Odell's report was accepted without objection from the plaintiff.
102 I accept that to establish volenti, the defendant must establish that Mr Bayne fully understood the extent of the risk.[33] In the final address, Mr Middleton conceded that volenti is a difficult concept to establish in this case, although it was a finding that was open to the court.[34] I hold that volenti has not been made out.
Contributory negligence
103 What is contributory negligence? In Nance v British Columbia Electric Railway Co Ltd,[35] Viscount Simon reading the speech on behalf of the Privy Council said:
The statement that, when negligence is alleged as the basis of an actionable wrong, a necessary ingredient in the conception is the existence of a duty owed by the defendant to the plaintiff to take due care, is, of course, indubitably correct. But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.[36]
104 This passage was cited with approval by McHugh J in Joslyn v Berryman[37] where he said:
At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed.[38] (citations omitted)
105 The term contributory negligence is slightly misleading as it does not require that the plaintiff contributed to the accident which caused his injury, rather it means nothing more than "he was guilty of some want of common caution by which he would have avoided the injury."[39] This may involve the plaintiff contributing to the accident such as stepping onto the road and being hit by a car, or as in this case, avoiding the injury by not exposing himself to the risk of injury by riding in the utility.
106 The defendant bears the onus of establishing contributory negligence. At common law contributory negligence was a complete defence to the plaintiff's claim. Now legislation requires an apportionment of the damages. The Wrongs Act 1958 relevantly provides:
26 Liability for contributory negligence(1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons-
(a) except as provided in section 63, a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant; and
(b) the damages recoverable in respect of the wrong must be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
107 Division 7 of Part X the Wrongs Act 1958 on contributory negligence does not apply to claims under s 104 of the Transport Accident Act 1986.[40] It is relevant to note, however, that the statutory test under s 62 of Division 7 of Part X adopts the common law test.
62 Standard of care for contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(26
2) For that purpose-
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
108 The common law test of contributory negligence was explained by McHugh J[41] and approved by Gummow and Callinan JJ[42] in Joslyn v Berryman.[43]
109 McHugh J said:
[37] 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. In Morton, Cooper J relied, correctly in my opinion, on the reasoning in the judgments of this Court in O'Neill v Chisholm and held that the relevant facts and circumstances included those which a reasonable person would have ascertained. The test applied by all members of the Court in O'Neill, including Walsh and Gibbs JJ who found no contributory negligence, was whether the passenger ought to have realised that alcohol had impaired the driver's capacity to drive.[38] 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[44] (citations omitted)
110 What ought a reasonable person in the position of Mr Bayne have known at the time? As indicated above, McHugh J in Joslyn v Berryman[45] said that the matters that the passenger ought to have known included facts known by "observation, inquiry or otherwise."[46] McHugh expressed the facts that could have been ascertained by inquiry in several ways. He included "those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care"[47] and "the relevant facts and circumstances included those which a reasonable person would have ascertained."[48] He said, "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."[49] Finally, he said:
In other areas of contributory negligence, a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained.[50]
111 Accordingly in this case, for the purposes of determining whether Mr Bayne was contributorily negligent, he is treated as knowing those matters a reasonable person in the position of Mr Bayne ought to have known including those facts or matters which he could have ascertained by the exercise of reasonable care.
112 For the reasons discussed below, I find that a reasonable person in the position of Mr. Bayne at the time ought to have known by making reasonable inquires that Mr Ewer was likely to have had his driving ability impaired by the consumption of alcohol and that Mr Bayne was taking a risk in permitting Mr Ewer to drive his utility and riding as a passenger in the utility.
113 The Commission led evidence from Ms McDonald, Mr Wilson, the designated driver, Mr Burgess, a member of the bowling team, and Mr Craig, to the effect that none of them noticed that Mr Ewer was exhibiting signs of being adversely affected by alcohol and therefore a reasonable person in the position of Mr Bayne ought not to have been aware that they were at risk of being injured by permitting Mr Ewer to drive the utility and riding as a passenger in the utility and accordingly Mr Bayne did not fail to exercise reasonable care for his own safety by allowing himself to be driven in the utility.
114 After taking into account Mr Bayne's evidence discussed above, I am unable to rely on Mr Bayne's evidence in deciding whether or not he formed the view that Mr Ewer had been drinking and his view on whether Mr Ewer's ability to drive was adversely affected by the consumption of alcohol.
115 I turn now to the evidence that may have indicated to Mr Bayne, or a reasonable person in Mr Bayne's position, that Mr Ewer had been drinking and his ability to drive was adversely affected by the consumption of alcohol.
116 As indicated above, Mr Burgess gave evidence that Mr Ewer had a can of light beer in the car travelling to Frances and at least seven cans of heavy beer at the bowling club. Mr Burgess conceded he was merry and his ability to drive was adversely affected by the consumption of alcohol at the end of the bowls competition. Apart from Mr Ewer's blood alcohol reading, I find that Mr Ewer was similarly affected. Mr Burgess said that Mr Ewer did not display by his behaviour that he was adversely affected by alcohol.
117 Mr Burgess was asked about his definition of intoxication. His evidence was as follows:
And you were asked about your definition of intoxication. Let me ask you about that. Is your definition of intoxication, would you say someone was not intoxication when they had consumed 8 or 9 beers in three hours?---It depends if they were falling over or stumbling or - - -Okay. So what do you look for in determining whether someone is affected by alcohol? First of all they have got to be stumbling or falling over, not holding their feet – just deal with that one first?---That would be part of it, yes.
Do they need to be sick or vomiting?---No, not really.
Not really, but that would help?---That would help, yes.
Yes. Do their clothes need to be in a mess like they have fallen over?---No, no.
What about their speech, what do you look for in their speech to determine - - -?---If they are slurring their words or that.
And what else do you look for?---Or if they are talking louder than normal or talking more.
Yes. What about looking in their eyes?---Not really.
Well, how would you – what would you say to your marks the difference between a person affected by alcohol and not affected by alcohol?---If they were stumbling around.
That would be it?---Yes.
They’d have to be almost incapable of holding their feet?---Probably, yes.
And hitting a wall or bouncing off a wall?---Or running into other people.
That would be plastered, wouldn’t it?---Yes.
And that’s what you see as affected by alcohol?---Yes.
Anything below that, not really effected?---No, it would be working up to that, yes.
But anything up to that, not really affected?---Not really affected, no.
And not certainly affected to warrant not driving?---Oh, you’d think about it.[51]
118 Mr Wilson, the designated driver, was unable to say how much Mr Ewer had to drink. He knew that Mr Ewer had been drinking. He knew that Mr Ewer did not expect to have to drive that evening as Mr Wilson was the designated driver. He says that Mr Ewer did not display by his behaviour that he was adversely affected by alcohol. Mr Wilson's evidence of behaviour that would indicate a person was adversely affected by alcohol was as follows:
What do you call a heavy drinker?---I am saying anyone that sits there and just drinks, can after can, after can, after can, that's a heavy drinker to me. But to me, like I have seen Hayden come into the hotel and have three or four pots and just go home, so - and I have drank with him fishing like during the day. just a social drink.Ever seen him intoxicated by alcohol?---Not - no, not intoxicated, no.
What do you call intoxicated? What's your measure of intoxication?---Well, to me intoxication is when someone can't hardly scratch themselves, yes.
So if you can't scratch yourself you are intoxicated. But anything below that, well, you are not intoxicated, is that your view?---Well, like - - -
Is that your view?---Yes, it is, so - - -
If they were vomiting, if they couldn't stand on their feet, if they couldn't put a word together, you would call them drunk?---That's dead right.
But anything less than that, that's okay?---Well, to me, well it is, yes.
Yes. If the evidence is that at the bowls club Mr Ewer went in a shout can for can with the other two, Mr Burgess and Mr Hocking, and they drank 9, 10 or 11 cans of beer over the two to three hours or three hours that they were there, would you say that was indicative of someone that was affected by alcohol?---Well, some people it does. And to me, I don't know how many cans they had for the night, but over that period of time it just didn't seem like he was really intoxicated.
Well, that goes back to your definition of not being able to scratch yourself, doesn't it?
---That's dead right.
Yes. Because it's normal in your community, isn't it, to go to the bowls club, drink when you are not the designated driver [and drink] as much as you want?---Well, that's the way - well, yes, it is, whether you want to have five or you want to have two or what.
Or 50?---Or 50, yes.
And have you ever drunk 50?---No, I don't think so.
And it's normal in your community, isn't it, for you to go and travel with a designated driver as a passenger to have alcohol in the vehicle?---That's right.[52]
119 Ms McDonald was not drinking with Mr Ewer. She knew that the bowls club served alcohol. She said that Mr Ewer had arrived home from previous bowls evenings drunk. She knew that Mr Ewer believed that he would not have to drive home that evening. She said, however, that Mr Ewer did not appear to be adversely affected by alcohol. Ms McDonald's was asked about her condition:
And if someone described you as badly affected, or even pissed, what would you say to that?---Yes, I would say pissed, but not badly affected.[53]
120 Mr Craig also said that he did not perceive from Mr Ewer's demeanour that he was adversely affected by alcohol. He did say that on previous occasions where he had observed Mr Ewer drinking, it was hard to tell how much Mr Ewer had actually drunk.[54] He said that when he had seen Mr Ewer drinking heavily or drinking all day, he thought Mr Ewer was sober.[55] Conversely Mr Craig said that when he saw Mr Bayne in the utility on the night of the accident, Mr Bayne was "extremely" or "incredibly" drunk.[56] Mr Craig formed this view based on observations that Mr Bayne was slumped down in the passenger seat of the utility and that he appeared to have poor muscle control because his head was rolling around. However, he said that given the way Mr Bayne looked while sitting in the utility, he was surprised that Mr Bayne's speech was not slurred and that Mr Bayne walked "cleanly" to the back of the utility without stumbling or falling over.[57]
121 I find that I am not able to place much store in the evidence of Ms McDonald, Mr Wilson, Mr Burgess and Mr Craig on this issue. I do not accept that a driver must exhibit any of the indicia referred to by these witnesses before a reasonable person would perceive that a person may have been drinking and his ability to drive adversely affected by alcohol.
122 The Victorian public has been inundated with information on the dangers of drinking and driving. The TAC slogan "if you drink then drive, you're a bloody idiot" would be well known to any reasonable person. The TAC campaign has emphasised the fallacy in believing that it is safe to drive if you are "only a little bit over" the limit of .05 per cent. A reasonable person would know this. In any event, each of the witnesses referred to above were well aware of the TAC advertisements conveying this information to the public. Mr Wilson was aware of the TAC publicity about drink driving in March 2006. Although there were no TAC advertisements in Mr Craig's local area, he was aware of the campaign. Similarly, Mr Bayne had seen advertisements about drink driving in South Australia and signs depicting drink driving and its consequences when driving in his home state and in Victoria.
123 The defendant referred to Mr Ewer and Mr Bayne being part of a culture of drinking. I consider that it is fair to say that drinking played a significant role in their social life. As the above evidence indicates, the people they mixed with on the evening each had a cavalier attitude to the degree to which one could drink and drive. Ms McDonald gave evidence that Mr Ewer would return home on occasions "pissed"[58] and would "spotlight" with Mr Bayne after the two men had been drinking together. On such occasions, Mr Ewer and. Mr Bayne would take a six-pack esky with them and, while primarily driving in paddocks, would on occasions drive on roads to gain access to the properties while affected or significantly affected by alcohol. Mr Craig said that he had never seen Mr Ewer consume ten cans of beer but had seen him after Mr Ewer had drunk all day or a significant part of the day. Mr Craig played cricket and football with Mr Ewer and drinking took place after the games.
124 Although Mr Bayne had driven his own utility to Frances, he was prepared to drink at a hotel for a couple of hours until he was intoxicated. He was prepared to allow Mr Ewer to drive, knowing that Mr Ewer was a heavy social drinker and was sure that Mr Ewer would have had a few drinks at the bowling club, although he said that he did not think Mr Ewer was going to go and get himself above the limit.[59]
125 This attitude to alcohol is epitomised by their purchase of a slab of cans of Jack Daniels and Cola to drink that night. As indicated above, Mr Ewer gave evidence that in his opinion he would have been capable of driving the car in spite of his consumption of alcohol that he had had that night.
126 What would a reasonable person in Mr Bayne's position have known? Such a person would have known that Mr Ewer enjoyed a drink and often drunk to excess. Such a person would have known that despite drinking, Mr Ewer was prepared to drive around paddocks and back roads to go spotlighting when affected by alcohol. Such a person knew that Mr Ewer had purchased a slab of mixed spirits. Such a person knew that Mr Ewer had consumed at least one of those cans whilst driving back to Bringalbert.
127 Such a person would have thought it likely that Mr Ewer had been drinking at the bowls club. Such a person would have appreciated that Mr Ewer's driving ability may have been adversely affected by alcohol, even though he was not staggering about or vomiting. Such a person would have realised that a night out with mates at the bowling club probably included the consumption of alcohol.
128 In my opinion, a reasonable person in Mr Bayne's position, exercising reasonable care for their own safety, would have made inquiries of Mr Ewer as to how much, if any, he had to drink. I find that if such a question had been asked, as it should have been, it would have been apparent to a reasonable person in Mr Bayne's position that Mr Ewer was not in a proper state to drive the utility and that Mr Bayne would be taking a risk in permitting Mr Ewer to drive his utility and riding as a passenger in the utility.
129 I therefore find that Mr Bayne was contributorily negligent in agreeing to Mr Ewer driving his utility and riding as a passenger in the utility.
What is the appropriate proportion under s 104?
1"> 130 In this case, under s 104 of the Transport Accident Act 1986, the amount of the indemnity is for such proportion of the liability of the Commission as is appropriate to the degree to which the injury or death was attributable to the act, default or negligence of the Mr Ewer. Both parties have conducted the case on the basis that the proportion is that proportion of the damages Mr Bayne would have recovered in an action against Mr Ewer where s 26(1) of the Wrongs Act 1958 would have applied. I have not heard any argument on the issue of whether or not s 104 should be read in this way. I will proceed on the assumption that it does, without deciding the issue.
131 Both parties submitted that the appropriate principles of apportionment are set out in Podrebersek v Australian Iron & Steel Pty Ltd[60] where the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:
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": British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoulcra v Lowenstern [1958] VicRp 94; [1958] VR 594. In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did.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, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. 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.[61]
132 If that be the law, in exercising my discretion I should take into account the degree of culpability of both parties and the relative importance of the acts of the parties in causing the damage. I should have regard to the whole conduct of each negligent party in relation to the circumstances of the accident and compare them. Ultimately, however, I am required to reduce the damages (in this case the right to an indemnity) to such an extent as the Court thinks is just and equitable having regard to the claimant's (in this case Mr Bayne's) share in the responsibility for the damage to Mr Bayne.
133 The Commission contends that the negligence of Mr Ewer involved more than drinking whilst intoxicated. They point to the evidence of Senior Constable Heckmann and Acting Sergeant Urquhart. As discussed above, Senior Constable Heckmann gave evidence that the utility had gradually veered off the road onto the gravel shoulder, that the driver had overcorrected to the right and that the vehicle then veered across to the right hand side of the road onto the right hand gravel. He said that the driver then overcorrected to the left and the vehicle tripped over. Acting Sergeant Urquhart gave expert evidence of the speed of the vehicle when it first veered off the bitumen onto the gravel shoulder and the speed when it tripped. Based on an accepted mathematical formula applied to tyre marks on the gravel shoulder, he calculated the speed at the initial veering off the road at 109 kph and 70 kph at the moment of tripping.
134 The formula relied on two inputs. The, first was a measurement of the yaw at a point close to where the vehicle left the bitumen. In this case, the yaw is the degree to which the back wheels of the vehicle slide out of line rather than follow the front wheels when the direction of the vehicle is corrected to bring it back onto the bitumen. In lay terms, we might call it the degree of rear slide. In this case, the formula used a measurement between the marks made on the gravel by the inside of the nearside rear tyre and the outside of the front nearside tyre.
135 The other important element of the equation is the coefficient of friction of the gravel shoulder where the yaw is measured. In this case, Acting Sergeant Urquhart assumed it was .5g (where g is the rate of acceleration of gravity). He agreed that it could have been measured but it was not. Mr Urquhart agreed that it could have been as low as .36g. In that case, the speed would have been 92.6 kph. Mr Urquhart said that the formula was conservative and that it usually gave a speed of 10 per cent below the actual speed. The formula used by Acting Sergeant Urquhart was not challenged by the defendant.
136 In the circumstances where the co-efficient of friction was not measured, I am unable to find that Mr Ewer was exceeding the speed limit.
137 Senior Constable Heckmann said that there were no skid marks indicating sudden braking to avoid something on the road. On the other hand, Mr Ewer may have pulled onto the gravel to allow a vehicle going the other way to pass or to avoid an animal on the road. We just do not know what happened.
138 In the circumstances, I am unable to disentangle Mr Ewer's impaired ability to drive from any other alleged particular of negligence.
139 When I have regard to culpability, I should take into account that Mr Ewer was the driver and that Mr Bayne merely a passive passenger. In Williams v Government Insurance Office of New South Wales[62] Kirby P (in dissent) said:
It is important to note that the question which is posed by the statute is not the responsibility of the alleged tortfeasor for the cause of the accident. In terms of s10(1) of the Act, the issue is the "claimant's share in the responsibility FOR THE DAMAGE" (emphasis added). This point was made by the Court in Talbot-Butt v Holloway (1990) 12 MVR 70 (NSWCA). Both the driver of a vehicle and a pedestrian were affected, to some degree, by alcohol, the pedestrian much more significantly. The trial judge apportioned the claimant's share in the responsibility for the damage at one-third. By majority, this Court (Clarke JA and myself; Handley JA dissenting) concluded that the driver bore the greater responsibility for the accident because he was in charge of a fast-moving vehicle which had a real chance of avoiding collision even with a pedestrian who was seriously intoxicated. The Court applied the statement of Samuels JA in McCutcheon v Muir, Court of Appeal (NSW), unreported, 1 February 1989 [1989] NSWJB 28. Samuels JA there compared the extent by which each of the parties in question had failed to comply with a standard of care expected of them by the law. But he also compared "the gravity, that is the causative potency of the failure in each case, the extent, in other words, to which each failure contributed to the accident". With the modification "contributed to the damage", I would apply this formula in the present case. The "causative potency" of driving a motor vehicle is much greater than that of handing over keys. It is greater because it is always open to the driver to refuse to drive. This is what he or she should do if not in a proper state to take charge of a moving vehicle capable of doing great damage. I do not regard this as undesirable, still less unrealistic. It is simply a statement of the obvious personal responsibility which the law - and commonsense - attaches to the person who gets behind the driver's wheel in a car and sets it in motion. Presenting keys permits this to occur. But it does not compel it to happen. There remains the individual choice of whether or not to drive. The law attaches consequences to the exercise of that choice by the driver.[63]
140 Kirby J referred with approval to this decision in Joslyn v Berryman.[64]
141 The defendant referred to the South Australian Civil Liability Act 1936 which makes a statutory presumption of contributory negligence where the injured person relies on the care and skill of a person known to be intoxicated. The provision applies where the injured party ought to have been aware that the other person was intoxicated. Where the driver is over .15, a statutory reduction of 50 per cent is to be made in the assessment of damages. In my view, this argument has no weight so far as my discretion under s 104 of the Transport Accident Act 1986 is concerned.
142 I take into account the following matters, that:
(a) Mr Ewer must have been aware that his ability to drive was adversely affected by his consumption of alcohol but he nevertheless drove the utility putting Mr Bayne at risk.
(b) Mr Ewer was the driver that lost control of the vehicle and this loss of control was caused or contributed to by Mr Ewer's driving ability being impaired by his intoxication.
(c) Mr Bayne handed the keys of the vehicle to Mr Ewer.
(d) Mr Bayne had not been drinking with Mr Ewer and his negligence was in not making reasonable inquiries of Mr Ewer as to whether he was fit to drive as I discussed earlier.
(e) Mr Bayne gave permission to Mr Ewer to drive his utility and gave him the keys to do so.
(f) Mr Bayne purchased two dozen cans of mixed spirits with Mr Ewer immediately before permitting Mr Ewer to drive his utility.
(g) Mr Bayne saw Mr Ewer drink at least one can whilst driving from Frances to Mr Craig's.
(h) If sober, Mr Bayne would probably have realised Mr Ewer had been drinking.
Mr Bayne had drunk until he was intoxicated and reduced his ability to make sensible decisions for his own safety.
(j) Mr Bayne had done so when he had driven his vehicle from Bringalbert to Frances in South Australia.
(k) Mr Bayne believed that Mr Ewer had probably been drinking at the bowls club.
(l) A heavy drinking culture existed among Mr Ewer and Mr Bayne and that should have alerted Mr Bayne to the probability that Mr Ewer had been drinking at the bowls club.
(m) Both Mr Bayne and Mr Ewer were intoxicated.
143 If I was to apply s 26 of the Wrongs Act 1958, I would think that it was just and equitable, having regard to Mr Bayne's share in the responsibility for the damage, to reduce his damages by 10 per cent. Bearing this in mind, I determine that the proportion that the plaintiff is entitled to be indemnified for under s 104 of the Transport Accident Act 1986 is 90 per cent of the plaintiff's liability to make payments to or for Mr Bayne.
144 I will hear the parties on appropriate orders including quantum and costs.
[1] Transcript 604.13-15.
[2] Supreme Court (General Civil Procedure) Rules 2005 r 16.03(1).
[3] Tr 320.19.
[4] Tr 320.15-16.
[5] Tr 336.21-23.
[6] Tr 220.13-14.
[7] Tr 220.13-18.
[8] Tr 221.14-15.
[9] Tr 214.6-9.
[10] Tr 203.11-12.
[11] Tr 228.9-12.
[12] Tr 231.2.
[13] Tr 141.15-18.
[14] Tr 383.1
[15] Tr 462.4-12.
[16] Tr 511.
[17] Tr 69.8-15.
[18] Tr 93.14-31.
[19] Tr 71.23.
[20] Tr 90.2-14.
[21] Tr 86.8-9.
[22] Tr 67.21-24.
[23] Tr 72.21-23.
[24] Tr 97.25-27.
[25] Tr 103-105.
[26] Tr 105.30-106.3.
[27] Tr 550.10-13.
[29] J D Heydon, Cross on Evidence (7th ed, 2004) [17535].
[30] J D Heydon, Cross on Evidence (7th ed, 2004) [17535], citing Hammer v S Hoffnung & Co Ltd (1928) SR (NSW 280 (FC); R v Askew [1981] Crim LR 398 (CA).
[31] (1928) 28 SR (NSW) 280 at 284 per Street CJ with whom Gordon and Ferguson JJ concurred.
[32] Exhibit P10.
[33] John Fleming, The Law of Torts (2nd ed, 1961) 387.
[34] Tr 588.
[36] Ibid at 611.
[37] [2003] HCA 34; (2003) 214 CLR 552.
[38] Ibid at [16].
[39] The Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39 at 54 per Dixon J.
[41] [2003] HCA 34; (2003) 214 CLR 552 at [37]- [39].
[42] Ibid at [70], [73]-[76].
[43] [2003] HCA 34; (2003) 214 CLR 552.
[44] Ibid [37]-[38].
[45] [2003] HCA 34; (2003) 214 CLR 552.
[46] Ibid at [37].
[47] Ibid.
[48] Ibid.
[49] Ibid [38].
[50] Ibid [39].
[51] Tr 340.27-341.26.
[52] Tr 288.7-289.13.
[53] Tr 221.13-15.
[54] Tr 127.8-10.
[55] Tr 151.3-5.
[56] Tr 127.11-18.
[57] Tr 146.20-23.
[58] Tr 210.9.
[59] Tr 93.14-31.
[60] [1985] HCA 34; (1985) 59 ALR 529; (1985) 59 ALJR 492.
[61] Ibid 532-533.
[63] Ibid at [25].
[64] [2003] HCA 34; (2003) 214 CLR 552 at [148].
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