COLE v LAWRENCE [2001] NSWSC 92

(2001) 33 MVR 159 [2001] NSWSC 92 Reported Decision : [2001] ACL Rep 135 NSW 10 [2001] ACL Rep 260 NSW 3 [2001] ACL Rep 300 NSW 18

New South Wales Supreme Court

CITATION : COLE v LAWRENCE [2001] NSWSC 92 FILE NUMBER(S) : SC 600079/95 HEARING DATE(S) : 30 May 2000 to 1 June 2000 JUDGMENT DATE : 28 February 2001

Plaintiff: Rosellie Jonnell COLE PARTIES : First Defendant: Angela Jane LAWRENCE Second Defendant: South Tweed Heads Rugby League Football Club Ltd JUDGMENT OF : Hulme J at 1

Plaintiff: D Wheelahan QC COUNSEL : First Defendant: L Morris QC, P Crittle Second Defendant: D Nock SC Plainitff: Hamilton Quinlan Fenwick SOLICITORS : First Defendant: Thomas Laycock Second Defendant: Colin Biggers & Paisley DECISION : Orders deferred

- 46 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: 600079/95 Wednesday, 28 February 2001 HULME J Rosellie COLE v Angela LAWRENCE & South Tweed Heads Rugby League Football Club Ltd JUDGMENT

HIS HONOUR:

1 On 26 June 1994 at about 6.20pm the Plaintiff was walking along Fraser Drive, South Tweed Heads. There she came into collision with a 4-wheel drive Mitsubishi Pajero the First Defendant was driving and suffered injury. 2 At the time, the Plaintiff was intoxicated - grossly so. An analysis of her blood carried out after the accident revealed a blood alcohol concentration of .238. There was evidence that it was likely to have been slightly higher earlier. 3 At about 9 to 9.30am on that day she had, in the company of friends Fay and Ken Hughes and Tom Watson, attended the premises of the Second Defendant to participate in a champagne breakfast. Although there was evidence from the club manager of the time to the contrary, Spumante was freely available at no cost on a table to which the patrons could take their glasses and replenish them. The supply of bottles to that table was kept up from time to time during the course of the morning by the Second Defendant. Asked how many glasses of this complimentary champagne she had had, the Plaintiff replied "lots". To the extent to which the evidence of Mr and Mrs Pringle may suggest there was not "lots" to be had, I reject that evidence. 4 The supply of free champagne ceased after a time. Estimates of when this usually occurred varied between 10 and 11 am. Having regard to evidence from Mrs Hughes as to the quantity she had and the time spent drinking before breakfast, my inclination is to think that the free drinks did not run out before about 10.30 on 26 June 1994. 5 The Plaintiff's own recollection of the day was incomplete. She did remember buying three bottles of Spumante later in the day from the bar. There may have been a little sharing of the contents of these bottles with Mrs Hughes although the strong probabilities are that the Plaintiff more than made up with drinks she obtained from a bottle or bottles Mrs Hughes had bought. During her time at the club, the Plaintiff played Keno, some other dog game which the club conducted, and the poker machines. She remembers that while there, she had a very good time. 6 Mr Hughes and Mr Watson had left earlier than Mrs Hughes and the Plaintiff. Asked for her last memory of the afternoon, the Plaintiff said that she recalled attending on a taxi cab and giving the driver directions as to the address to which Mrs Hughes should be taken, of going back into the club and, after that, of going out of the Club and having a look (but nothing more) at a football match in progress. In cross-examination she said that her last recollection was of being inside the premises. Her last recollection of drinking was of going to the bar and buying a bottle but she did not know whether this was before or after farewelling the taxi. The Plaintiff has no further recollection until waking up in hospital in Brisbane. I accept this evidence of the Plaintiff to which I have referred. 7 More details of the plaintiff's condition and activities at the club were provided by Mrs Hughes. Because of the Plaintiff's proceedings against the Second Defendant it is necessary to refer to this in some detail. Mrs Hughes gave evidence of them drinking throughout the period of free champagne, in Mrs Hughes' case filling 2 glasses at a time and herself drinking about 8. There is no direct evidence that the Plaintiff adopted this practice but, in light of the evidence of her state and actions later in the day, it would not be surprising if she had. 8 When the free champagne ran out, Mrs Hughes attended at the bar and purchased a bottle of Spumante, poured the Plaintiff and herself a glass, leaving the bottle behind the bar and available to herself and the Plaintiff when they wished. She was somewhat uncertain whether she purchased a second such bottle, dealt with similarly. 9 Mrs Hughes said that by around midday the Plaintiff was drunk, carrying on and arguing and her speech was a bit funny. Messrs Hughes and Watson left between 12.20 and 12.30 after which Mrs Hughes saw the Plaintiff drinking from the neck of a full Spumante bottle in the vicinity of the poker machines. At about 1 pm the Plaintiff went outside to the football area drinking as she went. At about 1.30 the Plaintiff was inside again and Mrs Hughes, following a phone call from her husband, indicated a desire to go home. Soon after she again saw the Plaintiff dancing out in the football area with 2 handbags round her chest, 2 cardigans in one hand and a bottle in the other swinging it around. At about this time the Plaintiff said to Mrs Hughes that she was going outside to spend some time with some New Zealand friends. At about 1.45, the Plaintiff appeared to Mrs Hughes to be "absolutely drunk" and by about 2.20, "totally inebriated" and "an embarrassment". It was at that time the Plaintiff gave instructions to the driver of the taxi in which Mrs Hughes left the club. Mrs Hughes also said that every time she saw the Plaintiff, the Plaintiff had a bottle of Spumante. 10 Mrs Pringle, the wife of the secretary and manager of the club at the time, who was herself doing voluntary work at the club on the day also gave evidence of her observations of the Plaintiff. She said that the Plaintiff had approached the bar requesting an alcoholic drink but due to her slurred speech she was unable to fully understand what she was saying and said to her "go away, you're drunk". In cross-examination Mrs Pringle agreed that the Plaintiff was not particularly unsteady at 3 pm but I regard this as but a limited qualification to the evidence she had given earlier. In a previous statement made to police, she described the Plaintiff as being well affected by intoxicating liquor. At 5.30 Mrs Pringle again noticed the Plaintiff. Mrs Pringle described the Plaintiff variously as being loud and slurred in her speech, walking unsteadily on her feet and as promiscuous, the result of her "grabbing men in a group on their private parts". 11 Mr Pringle gave evidence of seeing the Plaintiff at about 5.30 pm. He saw a bottle of Spumante on the table where the Plaintiff was and described her as being "very, very drunk" at that time. He thought she was being held up by someone else. He told her "You are affected by alcohol, I won't tolerate your behaviour, you will have to leave." 12 The only direct evidence as to the circumstances of the Plaintiff's leaving the club was provided by Mr Pringle. To facilitate her departure, and because Mr Pringle perceived the Plaintiff needed help to get home safely, the Plaintiff was offered the use of the club's courtesy bus and driver, both of which were available at the time. The alternative of a taxi was also offered, which apparently was part of the club's standard procedure in such circumstances. Mr Pringle described the Plaintiff's response to both offers as verbally abusive saying "I think she told me to get fucked." 13 Whilst Mr Pringle was telling the Plaintiff again that he would not tolerate such behaviour a Maori in the Plaintiff's company told Mr Pringle to leave it (semble, her) with them and that he and others with him would look after her. With this Mr Pringle continued on with his duties and within a matter of minutes noticed the group had all gone. Mr Pringle had in fact told the group that because of their behaviour, they would not be served again. However the group appeared to Mr Pringle not to be drunk. 14 At this stage it may be desirable to say something about the witnesses to whom I have referred. While I accept the evidence of Mr and Mrs Pringle referred to in the immediately preceding paragraphs, I do not accept all they had to say. Mr Pringle particularly exhibited a tendency to cast himself and the club in a better light than deserved. An example is his evidence suggesting that there was less rather than more free Spumante and that its distribution was supervised although I do not restrict my reservations to that topic. An example in the case of Mrs Pringle is her statement that the Plaintiff was not "overly drunk, notwithstanding her later agreement that the Plaintiff could not make herself understood. I accept Mrs Hughes. I accept also the honesty and, subject to the obvious defects in her memory, reliability of the Plaintiff. She impressed me as someone who did not exaggerate and this regardless of whether the topic was liability or damages. 15 I should also refer to other evidence bearing on the question whether the Plaintiff's condition was or was likely to have been observed by employees of the Second Defendant. Mr Pringle said that the normal attendance on Sunday mornings was about 120 people. Mrs Hughes said that there were at least 3 staff present - I infer in or capable of observing the patron area. Mrs Pringle gave similar evidence and that another 2 or 3 should have come on in the afternoon. 16 Mrs Hughes said that there was an exodus of the morning patrons between 12 and 12.30. At about 1 o'clock there were few people in the bar area. Between 9.30 and 12.20 the Plaintiff was everywhere, passing through the bar and poker machine areas, talking to other people. Between 12.20 and when Mrs Hughes left the Plaintiff was outside most of the time. 17 The conclusion at which I have arrived in this regard is that, given the Plaintiff's condition and actions as described by Mrs Hughes, the probability is that one or more of the staff members of the Club, prior to about 12.20 must have seen the Plaintiff and that she was to a significant degree intoxicated.