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. (4) (By Powell JA, dissenting) There was ample evidence upon which the trial judge could, as he seems to have done, conclude that the appellant and the driver were significantly affected by alcohol; that the appellant was conscious that there were risks involved in accepting a lift with Mr Miladinovic; and that the appellant had therefore materially contributed to the damage in respect of which he sought to recover in the action which he had brought against the respondent. (5) (By Powell JA) The apportionment made by the trial judge was excessive and a reduction in the amount of the appellant's damages of about 20 per cent would be more appropriate. Podrebersek v Australian Iron and Steel Ltd (1985) 59 ALJR 492, 59 ALR 529, distinguished. Brindall v McDonald (Court of Appeal, 11 March 1985, unreported), McGuire v Government Insurance Office of New South Wales (Court of Appeal, 18 May 1990, unreported), McPherson v Whitfield and Anor (Supreme Court of Queensland, Court of Appeal, 15 March 1995, not yet reported), cited. (6) (By Meagher JA, Handley and Powell JJA agreeing) The trial judge's findings should not be disturbed on the other grounds of appeal, which relate to the quantum of the award with which the trial judge would otherwise have made in favour of the appellant. 2 UNREPORTED JUDGMENTS ORDERS: (1) Appeal allowed. (2) Orders below set aside. (3) In lieu of a verdict and judgment for $4,888, substitute a verdict and judgment for $9,776, to take effect as from 28 September 1989. (4) The respondent to pay the appellant's costs both below and on the appeal. CASES CITED: Brindall v McDonald (Court of Appeal, 11 March 1985, unreported) McGuire v Government Insurance Office of New South Wales (Court of Appeal, 18 May 1990, unreported) McPherson v Whitfield and Anor (Supreme Court of Queensland, Court of Appeal, 15 March 1995, not yet reported) Podrebersek v Australian Iron and Steel Ltd (1985) 59 ALJR 492, 59 ALR 529 Meagher JA The appellant, Mr Zlojutro, sued the defendant, the present respondent, for injuries sustained by him when a passenger in a car for the conduct of the driver of which the respondent is responsible. Mr Zlojutro had been dining on fish soup at a Newtown restaurant, when the driver turned up. He was not one of the diners. Unsurprisingly, Mr Zlojutro and his friends took a little wine with their repast. In Mr Zlojutro's case it was such a small quantity of wine that it had virtually no effect on him: after drinking it, he felt "merry", which term he used as synonymous with "happy" The meal took an hour and a half. There is no evidence as to how much drink was consumed during this time. Mr Zlojutro's friend, the driver, Mr Bronco Miladinovic, whose negligence caused the injuries sustained by Mr Zlojutro, joined the group after dinner, and offered to drive them to a concert. He did not drink when he was with them. He may or may not have drunk some alcohol before he joined them: Mr Zlojutro, not being with him, did not know. He was known to be a safe and reliable driver. It later transpired, after the accident, that he had a blood reading of 0.125. Nobody was called to testify as to the significance of this. We can make no inference or deduction. For all I know many people drive motor vehicles perfectly safely with such a blood reading. His Honour deliberately refrained from making a finding that the driver was affected by alcohol. If this be correct, and it would seem to me to be correct, no finding was available that Mr Zlojutro knew the driver was affected by alcohol. Yet, paradoxically, his Honour found that the plaintiff was "conscious that there were risks" (unspecified) "involved" in accepting a lift with Mr Miladinovic, and assessed him guilty of contributory negligence to the extent of 50%. From what T have said, this is clearly insupportable. On the other grounds of appeal I see no reason to tamper with his Honour's findings. I am therefore of the view that the following orders should be made: [1] 1. Appeal allowed. [2] 2. Orders below set aside. [3] 3. In lieu of a verdict and judgment for $4,888, substitute a verdict and judgment for $9,776, to take effect as from 28 September 1989. [4] 4. The respondent to pay the appellant's costs both below and on the appeal. Handley JA I agree with Meagher JA. Powell JA I have read in draft the Judgment which has been prepared by Meagher JA with which Judgment I understand Handley JA to agree. UROJUTRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powell JA) Although I concede that the Judgment which was delivered by Pain DCJ was less well expressed than one might have wished, and although I am disposed to the view that the amount by which his Honour reduced the award of damages which he would otherwise have made in favour of the Appellant by reason of the Appellant's contributory negligence, was greater than, in the circumstances, was justified, I am unable to accept the view, expressed by Meagher JA in his Judgment, that the finding by Pain DCJ that "in all the circumstances on the evidence, the (Appellant) was conscious that there were risks involved in his going at the invitation of the driver to the concert at Campsie" was insupportable and that, in consequence, no reduction of what would otherwise have been the Appellant's award of damages was justifiable. In contrast to the view apparently taken by Meagher JA of the evidence which was tendered on the hearing before Pain DCJ, it seems to me that there was ample evidence tendered on the hearing upon which Pain DCJ could, as he seems to have done, conclude (1) that the Appellant was significantly affected by alcohol; (2) that Mr Miladinovic was significantly affected by alcohol; (3) that the Appellant was conscious that there were risks involved in his going at the invitation of Mr Miladinovic to the concert at Campsie; and (4) that, by reason of those facts, the Appellant had materially contributed to the damage in respect of which he sought to recover in the action which he had brought against the Respondent. So far as the Appellant is concerned, the evidence reveals the following (inter alia) matters: [5] 1. the Appellant and his friends were at the restaurant for some 2 hours or a little longer, they having arrived at about 7.00pm (AB at 25) and, in all probability, having left a little after 9.00pm. That this was in all probability so is suggested by the facts, first, that the point at which the accident occurred is only a very short distance - about 2 kilometres from the restaurant; second, that the ambulance which attended the accident responded to a telephone call which was booked at 9.23pm; and, third, that Constable Ironmonger, who appears as if he may then have been stationed at Petersham Police Station, attended at the scene of the accident at approximately 9.30 pm; [6] 2. in the course of his re-examination, the Appellant gave the following evidence: [7] "Q. Do you remember how many you had consumed at the restaurant before you left with Bronco? A. We have quite a lot of different kind of drinks like beer and whisky and different kind of alcohol because we celebrate, and wine, because we celebrate some friends who were at the table that night were going back to Yugoslavia so we celebrate his going. [8] Q. Had you been drinking constantly from the time of arrival at the restaurant until the time you left Bronco (sic)? A. Yes I had some drinks for that 1% hour what I was attending or staying in the restaurant with friends." 3. although, as Meagher JA has noted, the Appellant, in the course of his evidence, claimed that he was not drunk but that he was "just merry" (AB at 26, 29) in the course of his evidence in chief, the Appellant had earlier given the following evidence: [9] "Q. After the accident did you speak to a police constable at the scene of the accident? A. I don't remember if I spoke to the policeman because I was like unconscious and I was a little bit drunk as well." 4 UNREPORTED JUDGMENTS 4. in the course of his cross-examination, Constable Ironmonger, who was the first witness called in the Appellant's case at the hearing said that although he took most particular attention "of the driver", who, in his view, "(was) obviously under the affect of alcohol", he did note that all three in the car had been drinking; [10] _ 5S. in the light of these matters, it was open to Pain DCJ to proceed on the basis that, far from the Appellant having taken such a small quantity of alcohol that it had virtually no effect on him, he was significantly affected by the alcohol which he had consumed while at the restaurant. So far as Mr Miladinovic was concerned, the following aspects of the evidence might be noted: [11] 1. although, as Meagher JA has recorded, Mr Miladinovic had not been one of the group with whom the Appellant had originally gone to the restaurant, he did later join that group for a time which was sufficient to enable the Appellant to make some assessment of his (Mr Miladinovic's) condition. Thus, in the course of his cross-examination, the Appellant gave the following evidence: [12] Q. Would you describe Mr Miladinovic as merry? A. I don't know because he say 'would you like to go there' probably he was happy or merry." an answer which suggests to my mind that that the Appellant appreciated that Mr Miladinovic was, at least to a degree, affected by alcohol; [13] 2. not only, as I have earlier recorded, did the accident occur within a very short distance of the restaurant, but the circumstances of the accident suggest that Mr Miladinovic was in no fit state to drive a motor vehicle. That this was so is indicated by the facts, first, that the road at the point in question was straight and level, and the traffic light; second, that the accident involved the vehicle driven by Mr Miladinovic first colliding with the rear of a parked vehicle, then careering along the road for a distance of about 50 metres, when it swerved to its left, mounted a fence which was then forced over damaging another vehicle which had been parked on the other side of the fence, and finally came to rest on the fence itself; [14] 3. as I have previously recorded, Constable Ironmonger, who attended the scene of the accident at 9.30pm, which was probably within 15 minutes or thereabouts of the accident, noted, not merely that Mr Miladinovic smelt of intoxicating liquor (AB at 12), but formed the view that he was obviously under the effect of alcohol; [15] 4. although no breath test was administered to Mr Miladinovic at the scene of the accident (AB at 77), both the Appellant and Mr Miladinovic were conveyed by ambulance to the Royal Prince Alfred Hospital (AB at 71, 77) where they were admitted at approximately 10.00pm (AB at 71). While Mr Miladinovic was at the Royal Prince Alfred Hospital, a sample of his blood was taken for analysis which sample of blood, when analysed, disclosed a concentration of 0.125 grams of alcohol in each 100 millilitres of blood; 5. although, as Meagher JA has noted, no witness was called to testify "as to the significance of this", I do not accept that that fact means that it was not open to Pain DCJ, and that it is not open to this Court, to draw any inference, or make any deduction, from the blood alcohol reading. On the contrary, it seems to me that it was open to Pain DCJ, and it is open to this Court, in the light of the matters to which I will shortly refer, to infer that, at the time the Appellant and Mr Miladinovic left the restaurant, and at the time of the accident, Mr Miladinovic was significantly affected by alcohol. The matters to which I refer are as follows: UROJUTRO v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Powe JA) [16] (a) the Traffic Act 1909 prescribes (inter alia) for "ranges" of concentration of alcohol in blood, those "ranges" being "the special range", "the low range", "the middle range" and "the high range", those"ranges" being, respectively, 0.02-0.05, 0.05-0.08, 0.08-0.15, and 0.15 or more, grams of alcohol in 100 millilitres of blood (s2(3)); (b) the Traffic Act 1909 provides that it shall be an offence for any "special category driver" - which phrase includes the holder of a learner's licence or the holder of a first year provisional licence - whose blood alcohol reading is in the special range to drive or to occupy the driving seat of and to attempt to put in motion, a motor vehicle (s4E(1D)); and, further, that it shall be an offence if any person whose blood alcohol reading is in the low range (s4E(1E)), or the middle range (s4E(1F)) or in the high range (s4E(1G)) to drive or to occupy the driving seat of and attempt to put in motion, a motor vehicle or, being the holder of a driver's licence, to occupy the seat in a motor vehicle next to the holder of a learner's licence who is driving the vehicle; [17] (c) at least for the purposes of proceedings for an offence under subs(1D), subs(1E), subs(1F) or subs(1G) of the Traffic At 1900, a certificate as to the result of the analysis of any blood sample is to be treated as evidence of the concentration of alcohol in the blood at the time of any relevant accident unless the relevant defendant proves that the concentration of alcohol in his blood was otherwise than as is stated in the certificate (s4G(8), s4G(9)); [18] (d) a person once convicted of an offence under s4E(1F) of the Traffic Act 1909 is liable to a penalty not exceeding 10 penalty units - now $1,000.00 (Interpretation Act 1987 s56) - or to imprisonment for a period not exceeding 6 months, or both (s4E(1F)) and shall, in addition, be by virtue of the conviction and without any specific order be disqualified for 12 months from holding any driver's licence, the court upon conviction having a discretion to order a shorter period - not shorted than 3 months - or longer period of disqualification (s10A(1), s10A(2)(b)) - the periods of disqualification in the event of conviction for a second offence being greater (s10A(3)(d)); [19] (e) for the purposes of the Traffic Act 1909, an offence under s4E(1F) is a "major offence" (s2(1), s10A(1)). [20] 6. the result of the analysis of Mr Miladinovic's blood thus would permit an inference that, both at the time when the Appellant and Mr Miladinovic left the restaurant, and at the time of the accident, the concentration of alcohol in Mr Miladinovic's blood was toward the higher end of the "middle range" - it being noted that Mr Miladinovic was "breached middle range PCA" (AB at 77) - and, thus, that, at the relevant times, he was significantly affected by alcohol. In the circumstances, therefore, as I have earlier indicated, I am of the opinion that it was open to Pain DCJ to find that the Appellant had been guilty of contributory negligence and that he did not err when he did so. This notwithstanding, and notwithstanding the injunction directed toward appellate courts interfering with an apportionment made by a trial judge in such a case (see Podrebersek v Australian Iron and Steel Ltd! and notwithstanding that I accept that little, if any, assistance is to be derived in a review of the apportionment made in other cases - even those having some factual similarities to the present case - I am, as I have earlier indicated, disposed to think that the apportionment made by Pain DCJ in the present was excessive and that a 1. 1985) 59 ALJR 492; 59 ALR 529. 6 UNREPORTED JUDGMENTS reduction of about 20% was a more appropriate one (see, for example, Brindall v McDonald!; McGuire v Government Insurance Office of New South Wales?; McPherson v Whitfield and Anor3); however, given the views which are favoured by Meagher and Handley JJA, it is not necessary for me to express a concluded view on this matter. In common with Meagher JA, I do not consider that the other grounds of appeal - which relate to the quantum of the award with which Pain DCJ would otherwise have made in favour of the Appellant - have been made out. Given the views which I have recorded above, I would favour the making of Orders: 1. Allowing the Appeal to the extent of reducing by an appropriate amount the adjustment made by Pain DCJ in respect of the Appellant's contributory negligence; and 2. Since, in that event, the Appellant would have been but partially successful on the Appeal, that each of the Appellant and the Respondent bear his and its costs of the Appeal. (1) Appeal allowed. (2) Orders below set aside. (3) In lieu of a verdict and judgment for $4,888, substitute a verdict and judgment for $9,776, to take effect as from 28 September 1989. (4) The respondent to pay the appellant's costs both below and on the appeal. COUNSEL: Appellant: C TWOMEY Respondent: VB HUGHSTON SOLICITORS: Appellant: BOYD HOUSE AND PARTNERS Respondent: GIO 1. Court of Appeal 11 March 1985 (unreported) 2. Court of Appeal 18 May 19990 (unreported) 3. Supreme Court of Queensland (Court of Appeal) 15 March 1995 (as yet unreported)