ZLOJUTRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1995] NSWCA 538

ZLOJUTRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER,HANDLEY and POWELL JJ 24 May 1995, 11 August 1995 [1995] NSWCA 538

MOTOR VEHICLE ACCIDENT — BLOOD ALCOHOL READING — EVIDENCE CONTRIBUTORY NEGLIGENCE

FACTS: The appellant, Mr Zlojutro, sued the present respondent for injuries sustained as a result of a motor vehicle accident. The appellant was, at the time of the accident, a passenger in a car driven by Mr MiladinoVic The respondent was responsible for the conduct of the driver.

Before accepting the lift in the car, the appellant had consumed a quantity of alcohol; he said that he had felt 'merry'. Mr Miladinovic did not consume any alcohol while he was with the appellant. He was known to be a safe and reliable driver.

After the accident Mr Miladinovic was found to have a blood alcohol reading of 0.125 per cent.

The trial judge found that the appellant was conscious that there were risks involved in accepting a lift with Mr Miladinovic, and assessed him guilty of contributory negligence at fifty per cent.

HELD:

(1) (By Meagher JA, Handley JA agreeing, Powell JA dissenting) No inference or deduction can be made from the blood alcohol reading, because at trial nobody was called to testify as to the reading's significance.

(2) (By Powell JA, dissenting) The fact that nobody, at trial, was called to testify as to the significance of the blood alcohol reading, does not mean that it was not open to the trial judge, and that it is not open to this court, to draw any inference from the blood alcohol reading. Provisions of the Traffic Act 1909 indicate that the inference was open to the trial judge, and it is open to this court, that at the relevant times Mr Miladinovic was significantly affected by alcohol.

(3) (By Meagher JA, Handley JA agreeing, Powell JA dissenting) The trial judge having deliberately refrained from making a finding that the driver was affected by alcohol, the finding that the appellant was guilty of contributory negligence was clearly insupportable.