WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and COLE JJA 15 March 1995, 6 April 1995 [1995] NSWCA 516 NEGLIGENCE — contributory negligence apportionment — passenger/owner gives keys to intoxicated probationary driver — falls asleep on back seat — crash ensues — trial judge reduces — damages by 80 per cent — whether error — held: (by maj): Not. Suncorp Insurance and Finance v Blakeney (1993) 18 MVR 361 (CAQ) distd. DAMAGES — video film — advantages of trial judge. INSURANCE — compulsory motor vehicle third party insurance — relevance to operation of apportionment legislation- statutory contest of operation of apportionment. Mitchell vy GIO (NSW) (1992) 15 MVR 369 (NSWCA) consd. WORDS and PHRASES — "just and equitable" — "responsibility for the damage". NEGLIGENCE — contributory negligence — apportionment — reduction for contributory negligence — reduction for knowing conduct of owner of motor vehicle providing keys to fellow traveller known to be affected by alcohol owner proceeds to fall asleep on the backseat of a vehicle — driver known also to be a probationary driver — other passenger, supervising driver, known to be intoxicated by alcoholic liquor and prone to sleeping — vehicle driven out of control crashes and injures owner — owner sues and recovers damages of $137,641 — primary judge (Herron DCJ) reduces judgment by 80 per cent for contributory negligence — held: (Cole JA; Meagher JA concurring; Kirby P dissenting): The apportionment should not be disturbed by the Court of Appeal. Talbot-Butt v Holloway (1990) 12 MVR 70 (NSWCA), McGuire v Government Insurance Office (NSW) (1990) 11 MVR 385 (NSWCA); Suncorp Insurance and Finance v Blakeney (1993) 18 MVR 361 (QCA) considered; Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; 59 ALR 529 (HC) applied. Discussion by the Court of apportionment legislation and its operation in motor vehicle cases. Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 (NSWCA) considered. DAMAGES — neck injuries — objective signs — relevance of video film — alleged arbitrary assessment — held: (by the Court): Assessment stands — disturbance of assessment not authorised having regard to the advantages of the primary judge, including viewing of video films on plaintiff's activities. INSURANCE — compulsory third party insurance — motor vehicles' insurance — relevance of to operation of contributory negligence provisions under Law Reform (Miscellaneous Provisions) Act 1965, s10 — observations by Kirby P (dissenting) upon the operation of the apportionment provisions for contributory negligence in the context of legislation providing compulsory insurance to ensure recovery by drivers, passengers and pedestrians in the case of potentially serious injuries arising out of the use of motor vehicles. Mitchell vy Government Insurance Office (NSW) (1992) 15 MVR 369 (NSWCA) considered. 2 UNREPORTED JUDGMENTS WORDS and PHRASES — "just and equitable" — "responsibility for the damage". Law Reform (Miscellaneous Provisions) Act 1965, s10. Motor Vehicles (Third Party Insurance) Act 1942. District Court Rules, Pt31 R16. Kirby P This appeal from the District Court sitting in Goulburn (Herron DCJ) raises for decision a challenge to an apportionment for contributory negligence. Ms Tanya Williams (the appellant) has complained to this Court that the judgment entered by Herron DCJ is inadequate. A challenge is made to the components of the damages for past and future economic loss. It is submitted that they were inadequate and wholly disproportionate to the evidence. I would dismiss that ground of appeal for the reasons given by Cole JA. I would confine the appellant's appeal to the attack on the discount of 80 per cent which his Honour found for contributory negligence on the part of the appellant. The total sum to which his Honour found that the appellant was entitled was $137,641. Reducing that sum by 80%, the resulting recovery was $27,528. It is in that sum that judgment for the appellant was ordered to be entered. The formal certificate of judgment under Pt31 R16 DCR, included in the appeal papers, records that judgment was entered for $137,641. This is presumably a mistake. The appeal was fought upon the basis that the final judgment entered was that, reduced for contributory negligence, to which I have referred. A PASSENGER IS INJURED THROUGH CARELESS DRIVING The facts are stated by Cole JA. The appellant was the owner of the motor vehicle insured by the respondent. She was injured on 4 January 1986 in Goulburn when the motor vehicle ran out of control whilst being driven, at too fast a speed, by Ms Kaylene Southwell, a learner-driver. Ms Southwell was unable to pull the vehicle up at an intersection. She went through the intersection. The vehicle hit a small tree on the opposite side, causing injury to the appellant. As found by Herron DCJ, the appellant, Ms Southwell and other young people had, before the accident, spent several hours at the Goulburn Workers' Club. As found, they were all drinking alcoholic beverages. The appellant was drinking scotch whisky and cola. Mr Southwell was drinking schooners of beer ("quite a few"). His Honour found that Ms Southwell had been drinking middies of beer. She arrived at the club in the afternoon. She drank ten to twelve middies of normal strength beer before leaving the club at about 10pm. There was a controversy as to who drove the subject vehicle on the first leg of its journey after the party left the club. Herron DCJ did not feel the need to resolve that question. Certainly, at the time that the appellant was injured, the vehicle was being driven by Ms Southwell. The circumstances in which this came about were fairly clear. The appellant gave the keys to Ms Southwell. She got into the back seat of her car saying words to the effect "Why don't you drive?". Mr Southwell got into the front passenger seat. The appellant, meanwhile, lay down on the back seat. Ms Southwell then started driving the vehicle and soon had the accident giving rise to these proceedings. Herron DCJ said: "She... told me that as she was going down the hill, nothing was said by the other occupants of the car, and this I accept. " His Honour's recollection of the evidence (of which he had no running transcript) does not accord, in this respect, with the now available record of the trial. In the course of her evidence-in-chief, Ms Southwell said: "Q: What about Peter [Southwell]?. Was he yelling you were going too fast? A: At one time he said: You are going too fast. " WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby PB Mr Southwell gave evidence that he had no concern about his girlfriend (later wife) driving the appellant's motor vehicle: "Kaylene was capable of driving... she was capable of driving in my opinion." Mr Southwell took up his seat in the front passenger position next to the driver. But, as found by Herron DCJ, he was himself greatly affected by his drinking, as was the appellant who had handed her keys over to Ms Southwell. His Honour said: "... She handed the keys to Mrs Southwell because she herself realised that she was in no fit condition to drive the vehicle. So the situation was: the vehicle was being driven by Mrs Southwell, a learner driver, an inexperienced driver, with no adequate supervision being given to her by a person with a licence, who was required by law to be seated beside her. True it is that her present husband was seated beside her and true it is he was a licensed driver, but I come to the conclusion that he was in no fit position, by reason of his being affected by drink, to supervise her in the way in which he should have. And although he might have said to her, 'I see an intersection coming up' I accept his wife's evidence that nothing was said and I conclude that, if anything in fact was said, it was not said in a fashion so as to be communicated to her." It is against the background of these facts that this Court is invited to reconsider the findings and apportionment of Herron DCJ. The appellant complains that Herron DCJ ought to have resolved the difference between the evidence relating to who had driven the vehicle on the first stage of the journey, after the party left the club to the point where the appellant's sister, Ms Cindy Williams and her friend, Mr Paul Nelson, were dropped at Mr Nelson's home. The appellant submits that, if this question had been resolved in favour of the appellant (whose evidence on this point was, in some respects, corroborated by Mr Southwell) strong evidence would have been available to allow a finding that the driver was Ms Southwell. Upon that basis, so it was put, the appellant would have had confirmation when she handed over her keys that Ms Southwell was sufficiently competent, and in a fit state, to drive the vehicle on the second stage of the journey when the collision occurred. However that may be, the fact remains that Herron DCJ declined to resolve the point. It is not possible for this Court, which did not see any of the witnesses, to resolve the issue. The facts found must be accepted in the way they were stated by Herron DCJ with, in my view, the one exception that his Honour appears to have overlooked the acknowledgment by Mr Southwell that he had, at one time in the journey, told Ms Southwell, "You are going too fast." What follows from these facts for contributory negligence? CONTRIBUTORY NEGLIGENCE - AN INTOXICATED DRIVER It is important to note that the issue tended for trial before Herron DCJ was, relevantly, one of contributory negligence only. Although the Defence, filed by the respondent, denied negligence and declined to admit allegations in the Statement of Claim, the relevant defence (number 4) was an assertion that the injuries, loss and damage suffered by the appellant was suffered "as the result partly of [her] own fault and contributory negligence". The particulars of contributory negligence, in the Defence were, relevantly: "5. Failure to wear and make use of an available safety seat belt; 8. Failure to ensure that the said driver was in a fit condition to drive and keep the said vehicle under proper control; 4 UNREPORTED JUDGMENTS 9. Failure to heed the risks of travelling as a passenger in a motor vehicle being driven by a person not qualified or competent to do so because of insufficient tuition and experience; 10. Failure to warn the said driver of the risks involved in driving the said vehicle whilst not qualified to do so by reason of insufficient tuition and experience; 11. Failure to heed the risks in travelling in a motor vehicle being driven by a person not licensed to do so; 12. Failure to warn the said driver of the risks involved in driving the said vehicle whilst not licensed to do so; 13. Failure to warn the said driver against speeding and taking unnecessary risks whilst not licensed to drive motor vehicles; and 14. Failure to heed the risk as (sic) travelling in a vehicle whilst knowing that the driver was under the influence of alcohol." The case was not presented at trial as one in which the appellant had voluntarily assumed the risk of any injury which might occur in the course of a journey in her vehicle drive by Ms Southwell. In cases of this kind, it is open to a defendant, at least in certain extreme circumstances, to present its defence under each of the assertions: (a) That there was no breach of the duty which was owed in the circumstances causing the damage complained of; (b) That there was a voluntary assumption of risk; and (c) That the plaintiff, by contributory negligence, was partly responsible for the damage suffered. See Insurance Commissioner v Joyce (1948) 77 CLR 39, 46. See also Roggenkamp v Bennett (1950) 80 CLR 292, 300. Cf Wilkinson v Joyceman [1985] 1 Qd R567 (FC), 576. However, in the present case, the issues were simplified. Neither in its Defence nor at trial, did the respondent present a case of (a) or (b). Doubtless this was because authority establishes that even a driver known to be intoxicated will usually owe a duty of care to passengers. Acceptance of some risks of being injured in a vehicle driven by an intoxicated driver will not necessarily involve acceptance that, in the event of injury, no recovery may be made. See Cook v Cook (1986) 162 CLR 376, 384f. So in the circumstances of mutual intoxication, this case was confined, at trial, relevantly, to a defence of contributory negligence. Upon that defence, the respondent bore the onus of proof. It was common ground, both at trial and in this Court, that, for the respondent to succeed in a defence of contributory negligence in a case such as the present, it was obliged to prove: 1. That the passenger knew that the driver was intoxicated and that the level of intoxication known would, in the ordinary course, interfere with the driver's ability to control the vehicle and drive it safely; 2. That the intoxication, in fact, affected the driving of the driver at the relevant time; and 3. That the driver's state of intoxication was causally related to the damage actually suffered by the passenger. The appellant argued that the respondent had failed to prove these elements. Accordingly, it was asserted, there should have been no deduction at all for contributory negligence. The appellant should recover the entire damages to which she was otherwise found to be entitled. WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby PB The respondent complained that this presentation of the case did not accord with the issues fought at the trial; with the matters dealt with by Herron DCJ in his reasons for judgment; with the grounds of appeal contained in the Notice of Appeal; or with the original written submissions to this Court. Nevertheless, no adjournment of the hearing was sought. Nor did the respondent ultimately assert that this Court could not deal with the legal interpretation of the facts urged for the appellant. It was not argued that any prejudice was suffered which would make the appellant's preliminary arguments impermissible. See eg Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7. I am not inclined to spend much time on these complaints of the appellant. This is because I consider that there was ample evidence to sustain the conclusion of the primary judge that the appellant knew that Ms Southwell was, at the least, affected by alcohol. The appellant had been with Ms Southwell for some time. As found, she had observed her course of drinking middies of beer over the space of approximately eight hours. The possibility, indeed high probability, that this would be likely to affect, to some degree, the driving of Ms Southwell is, I consider, beyond argument. To the extent that the appellant was unaware of that fact, her lack of comprehension could only be attributed to her own advanced state of intoxication. Whilst there was no evidence concerning the body weight of the parties or the rate of absorption of alcohol, Herron DCJ had the advantage of seeing all of the actors in the drama. His conclusions are clear. So far as they concern the appellant's awareness of the drinking of Ms Southwell they seem very sensible. This Court was invited to draw an inference from the fact that the police, who attended the scene of the collision soon after it occurred, contented themselves with a conversation with the parties and then left. It was suggested that, if the driver (Ms Southwell) had been visibly affected by alcohol consumption, the police would have required her to submit to a test for the presence of alcohol in ha blood. Whilst this is a consideration, it scarcely contradicts the clear evidence which Herron DCJ accepted that Ms Southwell had been drinking, with her companions (including the appellant), over the long period from late afternoon until about 10pm The potential of such conduct to affect her driving skills would have been obvious to all, including the appellant. Indeed, it was presumably because Ms Southwell was felt to have consumed less alcohol than the appellant that she was handed the keys by the appellant, and asked to drive her vehicle, and this although she had never previously done so. It is important to remember the terms of the Law Reform (Miscellaneous Provisions) Act 1965. Pt3 indicates the purpose of the legislation. It is titled "Amendment of doctrine of contributory negligence". The doctrine of contributory negligence at common law was an absolute one. If even a tiny element of contributory negligence were established, a plaintiff was entirely disqualified from recovery. This fact led to many developments of the common law in an attempt by the courts to escape the most unjust results which the doctrine obliged the courts to arrive at. Lord Denning MR in Davies v Swan Motor Co (Swansea) Ltd; James Third Party [1949] 2 KB 291 (CA), 322 explained: "Previously, in order to mitigate the harshness of the doctrine of contributory negligence, the courts in practice sought to select, from a number of competing causes, which was the cause - the effective or predominant cause- of the damage and to reject the rest. Now the courts have regard to all the causes and apportion the damages accordingly. " 6 UNREPORTED JUDGMENTS This, then, was the function which the statute assigned to Herron DCJ. It did so, relevantly, in these terms: "Apportionment of Liability in Case of Contributory Negligence 10 (1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person... a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court think just and equitable having regard to the claimant's share in the responsibility for the damage. " What are the principles which should guide a court, in a case such as the present, in determining "the claimant's share in the responsibility for the damage"? What are the principles which control this Court's review of the primary judge's determination in that regard? CONTRIBUTORY NEGLIGENCE AND APPELLATE REVIEW The following principles should be kept in mind: 1. A passenger who accepts the risks of the inherent dangers of travelling in a vehicle driven by a driver who is affected by alcohol may be found to have contributed, by his or her own fault, to the damage suffered. If the passenger is unaware of the state or degree of intoxication of the driver when entering the driver's vehicle, the position may be different. But if the passenger agrees to accompany a driver on a journey, after participating with the driver in the consumption of alcoholic beverages, sufficient to affect the driver's capacity to drive properly and carefully and the passenger's capacity to think clearly and to perceive the obligations of self-protection, this will amount to a partial cause of the passenger's damage if an accident follows. It will sound in contributory negligence. See Joyce (above), 47; Owens v Brimmell [1977] QB 859, (QBD) 866f. In Owens, the driver and passenger accompanied each other to a number of hotels. The passenger's damages were reduced by 20 per cent for contributory negligence. See also Blakenez v Schulen, Supreme Court (Qld), unreported, 24 August 1993 (Thomas J) (passenger's damages reduced by 15%). If the passenger complains that he or she was not able to observe the state of intoxication of the driver, and if that inability were itself the result of a common course of intoxication, it would be open to the court to determine that the injured person has, to some extent, suffered damage as a result partly of his or her own fault. See Mendola v Warren [1993] Aust Torts Rep 81-240 (ACTSC); 2. A passenger who accepts the inherent risks of travelling in a vehicle driven by a driver who is affected by alcohol does not necessarily accept that the driver will continue to drive the motor vehicle when the driver ought reasonably to have concluded that he or she was not in a fit state to drive. See Beck v Mercantile Mutual Insurance Co and Anor [1961] SASR 311. This is because the driver, being in charge of a moving vehicle in conditions presenting many dangers, is in a position to cause grievous injury, even death, to the passenger. The passenger is not in an equal position to cause injury or death to the driver. This point is neatly made by the comment of Windeyer J in Teubner v Humble (1963) 108 CLR 491, 504: "\, [T]he statement that,... the motorist and the pedestrian are on different planes in respect of negligence is, I think, likely to mislead. If it means only that the degree of care that must be exercised in any operation varies with the risk involved, this goes without saying. The question is one of fact. I know of no relevant rule of law except that a man driving a motor car must act as a reasonable and prudent man driving a motor car would act in the circumstances: WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby PY and a pedestrian must act as would a reasonable and prudent pedestrian in the circumstances. Whether or not either has done or failed to do so is essentially a question of fact. A motor car does not become anything different from what it is by calling it "a lethal weapon". Doing so may bring home, if it be not sufficiently obvious, that if the driver of a motor vehicle does not drive carefully, he may kill somebody: whereas the carelessness of a pedestrian is a carelessness for his own safety rather than a disregard of the safety of others. But when both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian." Adapting these words to the present facts, the question is how far the appellant, as owner of the motor vehicle but a passenger, departed from the standard of care of a reasonable person by doing what she did and how far that departure caused her damage. 3. 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; 4. There is a further consideration in the context of motor vehicle accidents. The respondent corporation is only liable pursuant to the Motor Vehicles (Third Party Insurance) Act 1942. That Act established a system of compulsory insurance to cover damage occasioned by the use of motor vehicles upon public streets within the State. It did not abolish the common law of negligence (or trespass, etc). But it did provide a statutory regime of compulsory insurance which has profoundly affected the operation of the law of negligence in the case of motor vehicle accidents. See Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 (NSWCA), 371. The courts may pretend that this is not so. 8 UNREPORTED JUDGMENTS But it is difficult to explain the developments affecting the civil liability of drivers, even for moments of inattention lasting a matter of seconds, solely by reference to common law concepts of reasonable care. Self-evidently, the development of those concepts and their application in motor vehicle cases have been affected by the existence of compulsory third party insurance. This is not an excuse for over-riding, still less ignoring, the notions of negligence and contributory negligence. They continue to apply. But they apply in a context of compulsory insurance designed, ultimately, to protect people (passengers, drivers and pedestrians) from the devastating consequences which can flow from motor vehicle accidents. It is relevant for this Court, when considering what "justice and equity" require for the apportionment of an injured person's share in the responsibility for that person's damage, to take into account that, in motor vehicle accidents, a statutory scheme has been established to provide compulsory insurance and to ensure a fund for the compensation of persons injured as a result of the use of an insured motor vehicle; and 5. In reviewing a primary judge's determination of the "responsibility for the damage" appellate courts must show restraint. In part, this is because of the open-ended nature of the statutory formula used, referring as it does to what the court thinks "just and equitable". To succeed in a challenge to an apportionment under the Act, the appellant must show that the primary judge has taken into account irrelevant considerations or has failed to consider relevant ones or has reached a conclusion which is wholly erroneous. See Podrebersek v Australian Tron and Steel Pty Ltd (1985) 59 ALJR 492; 59 ALR 529 (HC); Pennington v Norris (1956) 96 CLR 10, 16; Broadhurst v Millman [1976] VR 208, 219; Talbot-Butt (above), 71. These are reasons for appellate restraint. But as many cases demonstrate, they are not reasons for a failure on the part of the appellate court to perform its own function as the law requires. THE APPORTIONMENT WAS ERRONEOUS Whilst I have rejected the primary submission for the appellant that there should have been no apportionment for contributory negligence in this case, Iam equally of the view that the finding by Herron DCJ that the claimant's share in responsibility for the damage which she suffered was 80%, represents a wholly erroneous apportionment in the circumstances. To some extent his Honour seems to have been affected by having taken into consideration two matters which were not relevant: (a) He appears to have believed that no protest about Ms Southwell's driving was either made, or made in such a way as to be understood, by her. He says as much at the two points in his reasons which I have cited. However, as the transcript shows, the statement was made. She was warned. Ms Southwell herself acknowledged awareness of Mr Southwell's protest concerning the speed of her driving, particularly in proximity to the intersection through which, in the words of Herron DCJ, she "careered"; and (b) He also seems to have been affected by his consideration of the judgment of this Court in Chang v Chang [1973] 1 NSWLR 708 (CA), 717. But that was a case which concerned the position of a driver under instruction. This Court held that the plaintiffs judgment should be reduced by 60 per cent for the instructor's contributory negligence. However, I regard the citation to be irrelevant for at least two reasons. First, the particular considerations which arise in instructor/driver cases do not apply in judging an apportionment in a case such as the present where the complaint concerns intoxication on the part of the driver WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby PB and a passenger who is asleep. Secondly, Chang was reversed on appeal to the High Court of Australia. See (1974) 48 ALJR 362 (HC). CONSIDERATION OF OTHER APPORTIONMENTS IN INTOXICATED DRIVER CASES The respondent correctly pointed out that comparatively little assistance could be found in a review of authority in other cases - even those having some factual similarities to the present. The High Court of Australia has generally disapproved such comparisons. See eg Planet Fisheries Pty Ltd v Rosa and Anor (1968) 119 CLR 118, 124. Comparisons are discouraged in the computation of damages because of the great variety of circumstances which differ from case to case. Most of the same considerations apply to the comparison of facts found to sustain proof of contributory negligence. But to the extent to which Herron DCJ was seeking some guidance about the approach which it was apt to take for a case such as the present, it would have been much more relevant for his Honour to have considered the approaches taken by the courts in such cases as Pangallo v Bolton (1980) 3 MVR 373 (ACTSC); McGuire v Government Insurance Office (NSW) (1990) 11 MVR 365; Spicer v Coppins (1990) 14 MVR 343 (FCSASC); and Suncorp Insurance and Finance v Blakeney (1993) 18 MVR 361 (CAQ). Some guidance, of a general kind, can be found in dicta in each of these cases which might have helped his Honour where Chang was likely only to mislead him. He might, for example, have had regard to what this Court said in Talbot-Butt (above) as to the meaning of "responsibility" as applicable to a case such as the present. In that case, at 74, I said: "The 'responsibility' to which s10(1) is directed is not to be confused with moral culpability: see Pennington v Norris, above, at 16. In its statutory context the word focuses attention on that fault of the injured claimant which contributed to his or her damage judged by the standard of the reasonable person. We are thus not concerned to punish the respondent because she became so _ heavily intoxicated as to blunt the edge of her capacity to make judgments which a sober pedestrian would easily make. The court is not really in a position, nor are we qualified, to judge her morally. Who knows what personal misfortunes, or causes undisclosed to the Court, occasioned her intoxication on the afternoon before her injuries? To the extent that she was morally culpable, her injuries suffice to exert their own punishment. The Court is concerned with a much more limited question. It is to be judged in the context of a statute designed to reform the common law rule which formerly defeated entirely a claimant's entitlement to damages if the slightest contributory negligence on the part of the claimant were proved by the defendant. The focus of the Court's attention is thus confined strictly to the fault which occasioned the damage." Also in Talbot-Butt (above), Handley JA pointed out at 88: "The evaluation and assessment of the culpability of the plaintiff and the defendant must take proper account of the fact that... the plaintiff's conduct posed no danger to anyone but herself, while the defendant who was driving the [vehicle]... was in charge of a machine that was capable of doing great damage to any human being who got in its way. This factor has been emphasised by the High Court in Pennington v Norris (1956) 96 CLR 10 at 16; Karamilis v Commissioner of South Australian Railways (1977) 15 ALR 629 at 635; Cocks v Shepphard (1979) 25 ALR 325; 53 ALJR 591 at 594.... [It may be] "axiomatic that a person who embarks upon a deliberate act of negligence should, in general, bear a greater degree of fault than one who fails to cope adequately with the resulting crisis which is thus thrust upon him'... " 10 UNREPORTED JUDGMENTS See also Miraflores v Livanos [1967] AC 826 (HL), at 847. Similarly, in McGuire (above), Clarke JA (with the concurrence of Meagher JA and Handley JA) confirmed a reduction of a plaintiff passenger's damages by 20 per cent where the passenger was rendered quadriplegic but was found to have had a 20 per cent share in the responsibility for his own damage because he travelled with a driver knowing that he, like the passenger, had drunk a considerable quantity of beer before setting out on the journey. Clarke JA, with the concurrence of the other Judges, confirmed the apportionment of 20%, saving (at 388): "Having regard to... the evidence that he had been drinking during the afternoon and that he had failed to negotiate a relatively simple corner in the vehicle he was driving, I think it must be accepted that when he was driving the vehicle his ability to control it was seriously impaired by alcohol. That, of course, does not mean that the appellant was guilty of contributory negligence. It was necessary for his Honour also to reach a conclusion that the insobriety of Smith was such that the appellant knew or ought to have known of his unfitness to drive the vehicle. Having regard to the appellant's own evidence about Smith drinking in the afternoon and the evidence as to the quantity of drinks that he had taken, I have little difficulty in drawing [that] inference.... The important finding is that Smith was quite incapable of driving the vehicle and was in such a state that the appellant ought reasonably to have recognised that. " In Suncorp, the Queensland Court of Appeal had to deal with the case of a driver who had a blood alcohol reading of 0.302%. This is a level approximating lethal proportions. The driver and the passenger had been drinking together for six hours before the accident occurred. The passenger gave evidence that he thought the driver "seemed all right'. The trial judge reduced the passenger's damages by 15%. On an appeal by the insurer, the Queensland Court of Appeal held that the damages should be reduced by 40%. At 365, McPherson JA and Williams JA remarked: "The cases do not establish that as a matter of law any particular degree of contribution must be found merely because the evidence establishes that the driver's blood alcohol level was above the legal permissible limit. The facts of each case will determine the proper apportionment and that is why the cases indicate a range of findings of the extent to which the passenger was contributorily negligent. On the facts in the cases before them Mack J in Duncan v Bell [1967] Qd R 425 and MacPherson J in Walker v Waller (1986) 4 MVR 69 apportioned liability 50-50, but Cooper J in Morton v Knight (1990) 2 Qd R 419 held the passenger to have been contributorily negligent to the extent of 20%. We are aware of other unreported cases in which apportionments of between 20 per cent and 50 per cent against the passenger have been made.... An apportionment of 15% against the respondent in the circumstances of this case bespeaks some error on the part of the learned trial judge.... Taking all matters into account a finding that the respondent was contributorily negligent to the extent of 40 per cent should be made. " CONCLUSION: CONTRIBUTORY NEGLIGENCE SHOULD BE REDUCED BY HALF I know of no case where the apportionment in the case of an injured passenger, knowingly travelling with an intoxicated driver has risen above 50%. The respondent, which, of necessity, would be aware of the overwhelming majority of cases involving motor vehicle claims in this State, was unable, despite my persistent invitation, to produce any cases in this State where the reduction for WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby R)l contributory negligence in such a case went beyond 40%. These facts, on their own, do not justify disturbance of the trial judge's apportionment. But they should make this Court pause in considering the order under challenge. If we like, we can satisfy ourselves with pious solecisms about the unique quality of the facts of each case. But the inference which this Court is asked to draw, in confirming the apportionment ordered by Herron DCJ, is, in effect, that the facts of this case are in some way extreme and demonstrate virtually the worst possible, conceivable instance of a passenger travelling with a driver known to be intoxicated. It is enough for me to say that I do not believe that this case comes even close to approaching the worst imaginable case of the series of claims by injured passengers against intoxicated drivers. The appellant gave the keys to Ms Southwell. But that was not a licence for Ms Southwell to forget her own obligations as a driver, and as a human being, in taking care for others. If she was not fit to drive, she should not have done so. The fact that she was unlicensed is not necessarily causative of the damage. Cf Leask Timber and Hardware Proprietary Ltd v Thorne (1961) 106 CLR 33, 38. The appellant fell asleep on the back seat of the car. Ms Southwell could see that. If she could not safely proceed, Ms Southwell ought to have summoned the friends, who had just been dropped, to telephone for a taxi. Alternatively, she should have waited at the friends' place or in the car until fit to drive. This is what the motor traffic law requires. The civil law should countenance no different standard of personal responsibility of drivers. The appellant had no control over Ms Southwell's conduct once she went to sleep. True, she had provided the keys. True also, by giving charge of her vehicle to a person known to be inexperienced and affected by alcohol, the appellant set in train the events which led to the crisis which ensued. But this did not relieve Ms Southwell of the primary obligation which she assumed once she put the vehicle in motion. Ms Southwell had ample opportunity, and many options. Had she only taken one of them she would have prevented the collision which injured the plaintiff. The keys put her in a position of choice. Driving the vehicle assigned to her extremely heavy and obvious obligations. Handing her the keys did not exempt her thereafter from her own responsibility. It permitted her to drive the vehicle. It did not oblige her to drive. Whilst the appellant must share in the responsibility for the damage, an apportionment of 80 per cent responsibility is in my view clearly wrong when the considerations to which I have earlier referred are taken into account. Although there would be some advantages in ordering a retrial of the proceedings, in order to secure findings of fact upon matters left undetermined or matters decided on an apparently erroneous basis, the balance of convenience warrants and requires a re-apportionment by this Court. It is safe to proceed in that way. In my opinion, having regard to the appellant's share in the responsibility for the damage which she suffered, it is just and equitable that the damages found by Herron DCJ (and confirmed by this Court) should be reduced by 40%. ORDERS The orders which I favour are: 1. Allow the appeal; 2. Set aside the judgment of Herron DCJ; 3. In lieu thereof, order that judgment be entered in favour of the plaintiff for the sum of $82,584.60, such judgment to take effect from 10 April 1992. Credit to be given for any sum already paid by the respondent to the appellant; 4. Confirm the cost order at trial; and 12 UNREPORTED JUDGMENTS 5. Order that the respondent pay the costs of the appeal. Meagher JA I agree with Cole JA. Cole JA In this appeal three grounds only were argued. They were: 1. There was no evidence upon which the trial Judge could find contributory negligence on the part of the appellant. 2. If that ground fails, the trial Judge's apportionment of contributory negligence of 80 per cent to the appellant plaintiff was appellably wrong. 3. In relation to future loss of earning capacity, his Honour was in error in awarding two years complete loss of earning capacity from the date of trial. It was contended that the trial Judge should have awarded for loss of future earning capacity as a cushion against the risk of future unemployment a sum of approximately $50,000 to $60,000. THE FACTS The following are the relevant facts: The appellant/plaintiff was injured in a motor vehicle accident on the 4th of January 1986 when the motor vehicle in which she was a backseat passenger struck a tree whilst the vehicle was being driven by Kaylene Southwell (Mrs Southwell). The collision with the tree occurred in Gilmour street, Goulburn at around midnight. The events leading up to the accident were as follows: (a) The appellant, Mrs Southwell, Mr Southwell and a Mr Nelson had all been at the Goulburn Worker's Club for some time. The ladies had been there since approximately 5.00p.m. in the afternoon, as had Mr Southwell. (b) At the time of the accident each of Mr and Mrs Southwell and the appellant were affected by alcohol. Mrs Southwell, who was then aged 19 years, had between approximately 5.00p.m. and 10-10.30p.m. drunk some ten to twelve middies of standard strength beer. Mr Southwell had been drinking schooners since about 5.00p.m. and had had "quite a few". The appellant had been drinking scotch and coca-cola over the same period. The appellant said Mrs Southwell had been drinking lemon squash throughout the whole period. The Judge did not believe that evidence preferring the evidence of Mrs Southwell that she had ten to twelve middies. That finding implicitly rejects the appellant's case that she agreed to Mrs Southwell driving because she knew she had not been drinking alcohol since 5.00p.m. (c) The driver, Mrs Southwell had never had a driver's licence. She had a learner's permit. The appellant, also aged 19 the time of the accident, knew this. (d) The vehicle driven by Mrs Southwell and involved in the accident was owned by the appellant. (e) The appellant and Mr and Mrs Southwell drove from the Goulburn Workers' Club to the home of Mr Nelson who had previously been at the club. Finding nobody at home they then drove in the direction of the Workers' Club intending to return there. The trial Judge did not resolve the question who drove from the Workers' Club to Mr Nelson's house. (f) Prior to leaving Mr Nelson's house there was a discussion about who should drive. Mr Southwell got into the driver's seat but was told by Mrs Southwell to get out. Mrs Southwell made that request: WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cole JAB "Because he was falling asleep, and so forth, and he had quite a few drinks Mr Southwell accepted that he was "well affected by alcohol'? (g) The appellant, in chief, accepted that she "knew (she) had over the limit"3. Having asked Mr Southwell to leave the driver's seat Mrs Southwell said to the appellant: "Why don't you drive?'". The appellant simply handed her the keys, got into the back seat of the car and lay down there. Mr Southwell, in his alcohol affected state, sat in the front passenger seat. (h) Mrs Southwell then drove off. She drove the vehicle too fast as she admitted. She said: "IT was obviously going too fast, and then I realised that there was an intersection and I put my foot on the brakes but it was too late and we just went straight through the intersection and hit a sapling on the side of the road in front of St Patricks College."4 (i) Nothing was said by either Mr Southwell or the appellant to Mrs Southwell about her driving prior to the accident.5 There was conflict in the evidence about this but that was the position accepted by the trial Judge.® Confirmation of the above account of the accident was found by the trial Judge in the statement given by Mrs Southwell on 12 February 1988 when Mrs Southwell, who was accepted as a witness of truth, said: "We got back into Tanya's car and Peter occupied the driver's position, Tanya got into the back and I was just standing alongside. Peter then decided he wasn't going to drive and then Tanya said to me "will you drive?". I had previously driven a car before with L plates on it but Tanya knew that I had never held a driving licence. I said, no, I had better not. It's your car and you ought to drive it*. Then she just handed me the keys over and I (got) behind the driving wheel. Tanya still stayed in the back. Peter got out and walked around and got into the front passenger's seat. Tanya had been drinking heavily throughout the night and in my opinion she was more affected by alcohol than Peter and I."7 His Honour found, as was obvious, that the driver was negligent. She travelled at an excessive speed, went through an intersection disregarding a give way sign narrowly missing a taxi, and failed to take a curve thus driving off the road and hitting the tree. The trial Judge's findings were: "The situation was that the plaintiff herself, although she handed the keys over to Mrs Southwell, the driver of the car, was affected by drink; and I would infer, of course, that she handed the keys to Mrs Southwell because she herself realised that she was in no fit condition to drive the vehicle. So the situation was: the vehicle was being driven by Mrs Southwell, a learner driver, an inexperienced driver, with no adequate supervision being given to her by a person with a licence, who was required by law to be seated beside her. True it is that her present husband was seated beside her and true it is he was a licensed driver, but I come to the conclusion that he was in no fit position, by reason of his being affected by drink, to supervise her in any way in which he should have." Appeal book, page Transcript 33-34 Appeal Book, page 69 Appeal Book, page 24 Appeal Book, page 54 Appeal Book, page 55 Appeal Book, page 1421 Appeal Book, page 145 NAWRYON SE 14 UNREPORTED JUDGMENTS and later: "Here we have a plaintiff, whom I conclude was under the influence of alcohol; Mr Southwell, whom I conclude was under the influence of alcohol; a learner driver, who had at least been drinking to a great extent and the position clearly is that the plaintiff allowed herself to be carried in her own vehicle. It seems to me that, in those circumstances, the plaintiff was courting disaster."8 It was in these circumstances that the trial Judge held the appellant responsible for the damage which occurred to her to an extent of 80%. The argument that there was no evidence upon which the trial Judge could find any contributory negligence at all ran as follows. The onus of establishing contributory negligence lay upon the respondent. Thus the respondent was obliged to prove, first, that the driver of the vehicle was suffering the effects of alcohol; second, that the appellant knew that the driver was so suffering such effects and that they would be likely to interfere with her control of the vehicle and, third, that the effects of alcohol known to the appellant in fact were causatively linked to the damage suffered by the appellant. It was said that the onus of proof had not been discharge in relation to any of the three necessary elements. Regarding the first, there was abundant evidence that the driver was affected by alcohol. She said that the appellant was "more affected by alcohol than Peter and I'. The driver thus accepted she was affected by alcohol. Commonsense and the general knowledge of human affairs reinforces that admission in circumstances where the 19 year old female driver had had approximately 10-12 middies of standard strength beer in a period of some five hours. I reject the contentions of Senior Counsel for the appellant that, in those circumstances, there could be no finding of affectation by alcohol absent specific evidence as to what was meant by the expression "middy", and absent expert evidence as to the effect of drinking about a dozen middies over five hours on nineteen year old female. Regarding the second, there was no direct evidence that the appellant knew the driver was suffering effects of alcohol or that such effects would be likely to interfere with her control of the vehicle. Nor could there have been any such evidence because the appellant maintained that, notwithstanding the driver's evidence that she had ten to twelve middies whilst drinking with the appellant, the appellant saw her drinking only lemon squash. The appellant's case was that the driver had not had any alcohol at all and that was why she handed her the keys. Rejection of that evidence necessarily involves that the appellant must have observed both that the driver had drunk approximately twelve middies, and the effect that had on her. They were, after all, drinking together for some five hours. If the appellant saw the driver drinking approximately a dozen middies, she must have appreciated that, being affected by alcohol as the driver admitted, her driving would be affected. Regarding the third, it was argued that the circumstances of the accident were equally consistent with mere negligence by the driver so that the respondent had not discharged the onus on it of showing that the damage suffered by the appellant was causatively linked to the known alcohol affectation on the driver. In my opinion that submission lacks reality. For the reasons I will address in dealing with the appropriate percentage of contributory negligence, it is unrealistic to suggest that a dozen middies of standard strength beer would not have an effect on the driving of an inexperienced unlicensed L plate driver. It 8. Appeal Book, page 147 WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cole JAB would be impossible to separate the elements of inexperience and alcohol in determining the cause of the driver travelling at an excessive speed, disregarding a give way sign, failing to brake, failing to negotiate a turn and crashing into a tree. Each, no doubt, played a part and as such each was a cause of the damage suffered by the appellant.? In my view there was adequate evidence upon which that finding of contributory negligence could be made by the trial Judge. APPORTIONMENT OF CONTRIBUTORY NEGLIGENCE The appellant submitted that the apportionment of 80 per cent made by the trial Judge was far too high. A percentage in the order of 25 per cent was said to be appropriate. Reference was made to Suncorp Insurance and Finance Ltd v Blakeney!° where an apportionment of 40 per cent was made and to Maguire v GIO (NSW)!! where an apportionment of 20 per cent was made. In my view little assistance is gained from considering apportionments made in other case because the appropriateness of an apportionment must depend upon the individual circumstances of each case. Here, there was a voluntary acceptance by the appellant of the risks associated with being driven late at night by an unlicensed, inexperienced learner driver who had drunk approximately twelve middies of beer and had been drinking for some five hours, and who was being guided or supervised by a licensed driver who was himself too affected by alcohol to drive, with the appellant, in those circumstances, herself lying down without a seatbelt in the rear seat. Those circumstances are, I would hope, both unusual and exceptional. It is useful to recall the passage in The Insurance Commissioner v Joyce!2 where Latham CJ said: "Tf a person deliberately agrees to allow a blacksmith to mend his watch, it may well be said that he agrees to accept a low standard of skill. But even in such a case, the blacksmith is bound to act sensibly, though he is not subject to the responsibilities of a skilled watchmaker. In the case of the drunken driver, all standards of care are ignored. The drunken driver cannot even be expected to act sensibly. The other person simply "chances it". Accordingly, the case may be described as involving a dispensation from all standards of care, so that, as the learned trial Judge decided, on the facts as found by him, there was no breach of duty by the defendant Kettle. But the facts of the case supposed will, if the passenger is in possession of his faculties, and the drunken state of he driver is obvious, also establish contributory negligence. There would be a lack of ordinary care for the plaintiff's own safety which brought about his injury. The same facts would also show that the plaintiff voluntarily encountered the risk which was obviously associated with the drunken condition of the driver. The maxim volenti non fit injuria would apply." The statement regarding "dispensation from all standards of care" may require some qualification in light of cases such as Cook v Cook!3 for it is now the law that the relationship of proximity between a driver and passenger give rise to a duty of care with the standard of care being "adjusted" to fit the special relationship under which it arises.!4 Further, since the introduction of s10 Law 9. March v E and MH Stramare Pty Ltd and Anor (1971) 171 CLR 506 at 514 10. (1993) 18 MVR 361. 11. (1990) 11 MVR 385. 12. (1948) 77 CLR 39 at 46. 13. (1986) 162 CLR 376. 14. Cook v Cook (1986) 162 CLR 376 at 384. 16 UNREPORTED JUDGMENTS Reform (Miscellaneous Provisions) Act 1965 concepts of voluntary acceptance of risk which constitute contributory negligence no longer afford a complete defence. S10 requires that: "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard the claimant's share in the responsibility for the damage." It is to be observed that the section looks not to the cause of the accident, but to an apportionment of the damage suffered by the claimant in consequence of the accident having regard to factors which adjust responsibility according to what is perceived to be just and equitable. As was said in Podrebersek v Australian Iron and Steel Pty Ltd,!5 and adopted in Bankstown Foundry Pty Ltd v Braistina:!¢ "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e of the degree of departure of the standard of care of the reasonable man... and of the relative importance of the acts of the parties in causing the damage... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." Apportionment of responsibility may be difficult although the notion of contributory negligence is not. As is explained in Braistina:!7 "A (person) will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury." Here, the appellant ought reasonably have foreseen that to hand the keys of her car to an inexperienced, alcohol affected, unlicensed learner plate driver to be assisted by a person himself too affected by alcohol to drive was to act both unreasonably and without prudence. The appellant ought to have reasonably foreseen that so doing exposed her to risk of gross injury. The extent of risk of injury commences with driving with an L plate driver. That risk might be regarded as modest because the learner driver is normally assisted by a competent licensed driver who can give her instructions sufficient to avoid or minimise the likelihood of accident and thus damage. The risk is increased to a very great extent if the person giving such assistance so as to minimise risk is himself so affected by alcohol as not to be able satisfactorily or effectively to perform that task. It is magnified to a much greater extent if the inexperienced driver is affected by alcohol. And it is magnified a fourth time if the passenger who is accepting these risks then lies in the rear seat of the vehicle without a seatbelt. The increase in risk from those four factors is not, in my view, of a mathematical progression but rather in the nature of a geometric progression. It is true that the immediate cause of the damage is the collision of the vehicle with the tree brought about by the driver's failure to drive at a proper speed and so control the vehicle as to be able to stop, as well as to keep the vehicle on the road. It is also true that no damage would have been suffered by the appellant if the driver had, when the appellant handed the keys to her, declined to drive. But 15. (1985) 59 ALJR 492 at 494. 16. (1986) 160 CLR 301 at 311. 17. (1986) 160 CLR 301 at 310. WRULIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Cole JAY to seek to isolate the fact that the driver failed to decline to drive and to elevate that circumstance to a major causative factor for the damage suffered so as to diminish the proportion of the responsibility of the appellant for her own damage in the circumstances to which I have referred is, in my view, to neglect the reality of the circumstances applying at the time of and immediately prior to the accident. Ican see no reason to disturb the apportionment of responsibility made by the learned trial Judge. FUTURE LOSS OF EARNING CAPACITY The trial Judge awarded the appellant as compensation for her loss of future earning capacity that which she would have earned for the two years after the trial. There was evidence to support such a finding. Doctor Lyttle thought the appellant would not make any significant progress until medico-legal matters were resolved and thereafter believed that: "There is an excellent chance that she will improve steadily to a state of functioning normally with minimal discomfort with perhaps some restriction with heavier lifting or carrying and for more physical activity which involves jolting or jumping"!8 Doctor Eggins was of the view that the effects of the accident lasted no more than 3 months. His opinion was that: "There is no residual impairment. Mrs Krakowiak (nee Williams) is currently physically fit to perform her normal duties as a wife, mother, and homemaker and even to return to work in her previous occupation, but her endogenous depression would make this difficult unless it was treated adequately."!9 An allowance of $32,864 for loss of future earning income capacity was, in my opinion, within the range of damages available to be determined by the trial Judge. I propose that the appeal be dismissed with costs. Appeal dismissed with costs. Representation: Counsel for the appellant: CR Callaway QC with HJ Halligan Solicitors for the appellant: Johnson and Sendall Counsel fort the respondent: HG Shore Solicitors for the respondent: Peter Jessop 18. Appeal Book, page 100. 19. Appeal Book, page 132.