RADOV v SULLIVAN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and COLE JA 27 June 1996 [1996] NSWCA 443 MOTOR VEHICLE ACCIDENTS — contributory negligence — encouragement of recklessness — failure to wear seatbelt — driver affected by alcohol — plaintiff's knowledge. On the morning of 16 October 1988 the plaintiff was a front seat passenger in a vehicle that crashed into a tree and left him a paraplegic. The vehicle was owned by the plaintiff but was being driven by his friend, the defendant. The plaintiff had recently re-registered the vehicle with four seatbelts but had removed three of them to replace them. The two had been drinking heavily the previous evening and according to expert evidence the defendant's blood alcohol level at the time of the accident was in the range of.14 to.166. The trial judge found the plaintiff had been guilty of contributory negligence to the extent of 25% for being without a seatbelt in a car driven by an alcohol-affected driver whom he had encouraged in "mucking about". The the trial judge exercised his discretion under SCR Pt 36 r 13A to allow oral evidence as to the blood alcohol level of the defendant although no report had been served. No application was made by the plaintiff for an adjournment to investigate this evidence. The trial judge found that the appellant had been in breach of reg 110 F(2A) of the Motor Traffic Regulations which made it an offence not to wear a properly adjusted and secured seatbelt in a seat that had been fitted with a seatbelt. He also found that the plaintiff had been in breach of reg 92(1) and Sch F read with Sch F para 68A of the Regulations which prohibits a vehicle being driven on a public street unless fitted with seatbelts. HELD: dismissing the appeal: (1) The judge's decision to allow oral evidence despite SCR Pt 36 r 13A involved the exercise of a judicial discretion in a matter of practice and procedure; (2) No error was established in the exercise of the discretion; (3) Any prejudice to the plaintiff could have been met by protective orders but none were asked for; (4) The judge was in error in holding that reg 110 F(2a) applied when it was physically impossible at the time for the plaintiff to wear a belt properly adjusted and secured; (5) He was correct in holding that reg 92 (1) and Sch F read with Sch F para 68A was breached and that the plaintiff as the owner of the vehicle must accept responsibility for its breach; (6) The plaintiffs failure to retain and wear a seatbelt was contributory negligence; (7) The judge was entitled to find that the driver's ability was impaired and that the plaintiff ought to have known this; (8) There were no grounds for interfering with the trial judge's apportionment. Handley JA. This is a plaintiffs appeal against the apportionment for contributory negligence made by Mr Justice Dunford who heard the plaintiff's action arising from a motor vehicle accident which occurred on 16 October 1988. The motor vehicle in question was descending from Stanwell Tops to the beach at Stanwell Park, it was the appellant's own vehicle, but he was not driving at the time because he was disqualified and one of his friends, the defendant, was driving. Two other friends were in the back of the car. On the way down from Stanwell Tops the defendant lost control of the vehicle which left the road, collided with a tree and the plaintiff, who was notwearing a seat belt at the time, became a paraplegic. Negligence was not in dispute and there is no dispute as to damages. 2 UNREPORTED JUDGMENTS The trial Judge found that the plaintiff had been guilty of contributory negligence in a number of respects and held that he should be treated as responsible to the extent of 25 per cent for his injuries. Needless to say this substantially reduced the plaintiffs overall recovery. The Judge found that the defendant's ability to drive a motor vehicle was impaired as a result of the presence of alcohol in his body and that this was, or ought to have been, known to the plaintiff. At the relevant time the defendant's blood alcohol level, according to expert evidence, accepted by the Judge, would have been in a range from.14 to.166. The Judge also accepted expert evidence that a blood alcohol level within this range would have significantly impaired the defendant's driving ability. The plaintiff was not wearing a seat belt and the Judge accepted expert medical evidence that the absence of a seat belt had significantly worsened the injuries sustained by the plaintiff in the accident. He was the owner of the vehicle and had only recently re-registered it. At the time of its re-registration it had seat belts fitted for the driver, the front passenger and two seats in the rear. The plaintiff was travelling in the front passenger seat, a situation of some risk, in an accident of the kind that occurred in the present case. However although the vehicle, a Holden Monaro V8, had been only re-registered with four seat belts in position approximately a week before, theplaintiff had removed the passenger seat belts because he wished to replace them, in due course, with seat belts of a colour which matched the interior upholstery of his vehicle. Thus when this accident occurred the plaintiff was not the beneficiary of the restraint that a seat belt would have provided and on his Honour's findings his injuries were significantly greater than would otherwise have been the case. The final matter which the trial Judge took into account in his assessment of contributory negligence was the evidence that as the car was descending from Stanwell Tops the driver was 'mucking around a bit'. The plaintiff described this as giving the car a full boot of power, every now and again, for the sound effects thereby produced. The car was descending in second gear and accelerating and revving in that gear with the driver letting his foot off the throttle without touching the brakes. The plaintiff said that immediately before the vehicle got out of control he was laughing, enjoying it, having a good time mucking around. The trial Judge concluded that the plaintiff, in this way, was encouraging the defendant to drive the plaintiff's own vehicle, on a steep winding road, in dangerous circumstances and that for this reason also he bore some responsibility for the disaster which followed. The first ground of appeal, logically the first ground of challenge by Mr Toomey, was to his Honour's decision to allow the defendant to call oral evidence from a Miss Juska who had tertiary qualifications in science who had carried out a blood alcohol analysis on a sample of the defendant's blood. The solicitors acting for the defendant had served a notice to admit facts and documents when the statement of defence was filed in February 1991. The notice referred to a blood alcohol analysis reading recorded on a certificate given by Miss Juska. The plaintiffs solicitors promptly responded, disputing the facts and the authenticity of the document, thereby indicating, as clearly as one could, to the defendant and his legal advisers, that these matters would have to be properly proved at the trial. URJ RADOV v SULLIVAN (Handley JA) 3 The trial Judge initially rejected a tender of the certificate and the defendant was required to prove the facts in the ordinary way. The difficulties for the defendant came to a head when Miss Juska was called to give oral evidence of the result of her analysis of a sample of the defendant's blood taken not long after the accident. No report by Miss Juska had been served on the solicitors for the plaintiff so that, if SCR Pt 36 r 13A applied, it had not been complied with. Over objection from Mr Toomey, QC, the trial Judge exercised his discretion under r 13A to allow the oral evidence of Ms Juska to be given. No application for an adjournment to call evidence in reply was foreshadowed and his Honour was not asked to receive the oral evidence of this witness on terms entitling the plaintiff to an adjournment and protection in respect of any costs thrown away. Miss Juska gave evidence, was cross-examined and excused. Once again no application was made for an adjournment to enable the plaintiff to investigate this evidence and if soadvised to call evidence in answer with perhaps the need for Miss Juska to be further cross-examined in the light of any further instructions the plaintiffs advisers were able to obtain during the adjournment. Mr Toomey now challenges the decision of the trial Judge to receive Miss Juska's evidence, notwithstanding the alleged contravention of r 13A. His Honour's decision was in a matter of practice and procedure and involved the exercise of a judicial discretion. The matter was essentially one of balancing prejudice to the plaintiff against prejudice to the defendant should the evidence be ruled inadmissible. In my judgment the appellant has entirely failed to establish any error by the trial Judge in the exercise of his discretion which would entitle this Court to interfere. Any prejudice to the plaintiff could readily have been met by an adjournment and by protection in respect of any costs thrown away but his Honour was never asked to make such orders. I would add that I have some doubt as to whether Miss Juska's certificate was in any event an expert's report within r 13A. She made her analysis, signed and issued the certificate, not at the request of solicitors for a party but, in the course of the routine discharge of her duties in the Department of Health. Moreover, it seems to me, her certificate did not contain the facts, on which her opinion was formed, within the meaning of r 13A (2)(a). However there is no need for me to express a final conclusion on that question, it is suffice to say that I am not persuaded that the trial Judge fell into any appealable error. Mr Toomey's principal point related to the construction of reg 110 F (2A) of the Motor Traffic Regulations which the trial Judge accepted. This regulation provides: No person shall, upon a public street, travel as a passenger in a motor vehicle while occupying a seat position in that vehicle to which a seat belt has been fitted for that seat position unless the person is wearing that belt and the belt is properly adjusted and securely fastened. The trial Judge held that there has been a breach of this regulation because a seat belt had been fitted for that seat position, to the knowledge of the plaintiff, although it had been removed prior to the occasion in question. With very great respect, in my view, the construction adopted by the trial Judge was not correct. The regulation imposes a criminal offence and prima facie the obligation it imposed must be capable of being complied with. As construed by his Honour the regulation could not be complied with by any person occupying the seat at the relevant time. It would be extraordinary if a regulation which could not be 4 UNREPORTED JUDGMENTS complied with made non compliance a criminal offence. In my view the regulation only applies where a seat belt had been fitted for the seat position and remained in place so that it was capable of being properly adjusted and securely fastened by the passenger, as required by the latter part of the regulation. However, although I have concluded that the trial Judge fell into error in adopting the construction he did of this regulation, I am also of the view that his Honour was perfectly correct in holding that the same facts gave rise to a breach of reg 92(1) and Sch F read with Sch F para 68A of the Motor Traffic Regulations. His Honour construed these provisions as prohibiting a vehicle from being driven upon a public street unless it was fitted with seat belts. This vehicle could have been driven on a public street without a breach of those provisions if there were no passengers but not while it had three passengers without the benefit of seat belts. The plaintiff must accept responsibility for that breach. The vehicle was his, and he gave permission for it to be driven in the knowledge that there would be three passengers as well as the driver. He had removed the seat belts only a week before and alternative means of travel, in the form of at least one other vehicle was available to the group. Mr Toomey challenged the Judge's finding that the defendant's ability to drive had been impaired as a result of his blood alcohol level found by Miss Juska, as interpreted by Dr Dauncey. He also challenged the Judge's finding that the plaintiff knew or ought to have known about this impairment. He relied upon evidence given by other members of the group and by the plaintiff as to what they saw and observed on the morning in question. However, the evidence of Dr Dauncey, supported as it was by the evidence of Miss Juska, established a powerful case of impairment and his Honour was entitled, having regard to his observations of the relevant witnesses, to prefer theexpert evidence of Dr Dauncey, rather than the evidence of the plaintiff and his friends. Mr Toomey also challenged the Judge's finding that the plaintiff knew, or ought to have known, about the condition of the defendant. However, the Judge's finding was amply supported by evidence. The two men had been drinking at a twenty-first birthday party the night before. The plaintiff, on his own account, had consumed between 9 to 18 schooners that night and the defendant had also consumed a large amount of alcohol, in the order of 10 to 15 middies. Both had been in each other's company at that party, both had slept in the same premises after the party was over and had been in each other's company the following morning. In these circumstances I have not been persuaded that the trial Judge fell into any error of a kind which would entitle this Court to interfere. Finally, Mr Toomey submitted, that even on his Honour's findings an apportionment as high as 25 per cent was outside the range open to the trial Judge, and that this Court should interfere. Appellate courts have frequently cautioned against over-ready interference with apportionments of this nature involving as they do the discretionary evaluation of a large number of facts. I have not been persuaded that the three grounds of contributory negligence, found by the trial Judge, did not properly support his apportionment. In the circumstances I would propose that the appeal be dismissed with costs. Clarke JA. I agree. I would add however that I consider that his Honour, the trial Judge, was correct in concluding that even if the Regulations did not apply the defendant had made out a case of contributory negligence under the general law. The vehicle being driven at the time was the appellant's own vehicle. The URJ RADOV v SULLIVAN (Cole JA) 5 appellant knew that in order to have it registered it had to be fitted with seat belts. Accordingly, three weeks before the accident, when he took it to be registered, he had it fitted with seat belts. For reasons of his own, about which no criticism can be made, he removed those seat belts, or three of them, that is for the passengers, a week before the accident. No doubt he would have understood it was perfectly safe for him to drive the vehicle with the seat belt still there but he would have also appreciated that the absence of the safety devices rendered it risky for him to ride as a passenger in other parts of the vehicle. In my view he must be taken to have understood that the seat belts were safety devices and that he was undertaking a risk in riding in the vehicle, in the passenger seat, without the assistance of a seat belt. What is more this was a pleasure trip in which this particular vehicle was selected, despite the availability of at least one other vehicle which had the benefit of seat belts. It seems to me that the appellant knowingly ran the considerable risk of driving in this vehicle without seat belts and that that constituted, in the circumstances of this case, contributory negligence. I agree with the orders proposed. Cole JA. I agree with the orders proposed and the reasons delivered by each Mr Justice Handley and Mr Justice Clarke. Orders accordingly. Counsel for the appellant: BMJ Toomey QC/MJ McAuley Solicitors for the appellant: Albert A Macri and Co Counsel for the respondent: M Elkaim Solicitors for the respondent: G M Meadows