Supreme Court New South Wales Medium Neutral Citation: Pallier v Solomons (No 2) [2014] NSWSC 1524 Hearing dates: 25 - 28 August 2014 Decision date: 11 November 2014 Jurisdiction: Common Law Before: Hamill J Decision: Verdict for the plaintiff (with no reduction for contributory negligence) in the sum of $1,638,062.00 Defendant to pay the plaintiff's costs. Catchwords: CIVIL LAW - Contributory negligence - where plaintiff travels with driver who was under the influence of alcohol - defendant's negligence admitted - extent of impairment where relatively low blood alcohol concentration - whether reasonable person ought to have known driver was impaired - where driver deliberately drove off the roadway to scare passengers - whether foreseeable or significant risk - plaintiff a minor - where plaintiff forced to leave remote premises due to aggressive conduct of host - just and equitable apportionment Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Asim v Penrose & anor [2010] NSWCA 366 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Gordon v Truong [2014] NSWCA 97 Gray v Richards [2014] HCA 40 Luxton v Vines (1952) 85 CLR 352 Neat Holding Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170 Briginshaw v Briginshaw (1938) 60 CLR 336 Nicholson v Nicholson (1994) 35 NSWLR 308 Nominal Defendant v Green [2013] NSWCA 219 Pallier v Solomons [2014] NSWSC 1214 Palmer v Dolman [2005] NSWCA 361 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 T and X Company Pty Ltd v Chivas [2014] NSWCA 235 Texts Cited: Review of the Law of Negligence: Final Report (September 2002) Category: Principal judgment Parties: Charles John Kavanagh Pallier (Plaintiff) Trent Leigh Solomons (Defendant) Representation: Counsel: P W Taylor SC (Plaintiff) S Hickey (Plaintiff) K P Rewell SC (Defendant) Solicitors: Lyons Barnett Kennedy (Plaintiff) J M Crestani & Associates (Defendant) File Number(s): 2012/285218 Publication restriction: Nil Judgment 1At around 11pm on 4 October 2009 the plaintiff suffered serious injuries when he was a passenger in the back seat of a motor vehicle driven by the defendant. The most significant of the injuries was a brain injury causing him almost total incapacity. He seeks damages against the defendant. 2The parties agree that the defendant was negligent in his care and control of the car in which he and four others were traveling. There is a factual dispute as to the extent of that negligence and the precise content of it. It will be necessary to resolve that dispute to determine the issue that has been left for me to decide. 3The plaintiff was born on 6 September 1993 and had just turned 16 years of age at the time of the collision. For that reason, his potential earning capacity was difficult to calculate. However the parties reached agreement towards the end of the first day of the hearing as to the damages to which he was entitled. Those damages are as follows: (1)non-economic loss 420,000 (2)out of pocket expenses 3,363 (3)past economic loss 92,464 (4)past superannuation 10,171 (5)future economic loss 666,548 (6)future superannuation 75,974 Total = $1,268,520 4Because of the plaintiff's incapacity, it was necessary for that settlement or compromise to be approved under s 76 of the Civil Procedure Act 2005 (NSW). I approved the agreed settlement on 27 August 2014: Pallier v Solomons [2014] NSWSC 1214. 5At that stage, there remained a dispute between the parties as to the appropriate damages to be awarded for fund management, it being clear that the plaintiff's damages will have to be managed by an appropriately qualified trust company. That dispute is now resolved and the parties agree that the damages should be increased by $369,542.00 to reflect the costs of managing the fund. 6The final dispute between the parties is whether the damages should be reduced as a result of what the defendant asserts is the plaintiff's contributory negligence and, if so, to what extent. 7At the commencement of the hearing, one of the disputes between the parties was whether the plaintiff contributed to his own injuries by failing to wear a seat belt. However, the defendant has abandoned that part of its assertion of contributory negligence. Aspects of the evidence relevant to that issue have some relevance to the resolution of the remaining factual dispute between the parties. 8The resolution of the issue of contributory negligence turns largely on the resolution of four questions. 9First, the defendant asserts that the plaintiff contributed to his own injuries by choosing to travel with the defendant in circumstances where he knew or ought to have known that the defendant's driving would be impaired by his intoxication from the consumption of alcohol. The plaintiff's case is that he was not aware of the defendant's intoxication and that the evidence would not lead me to conclude that a reasonable person in his position ought to have been so aware. 10Second, there is a significant factual dispute as to the precise content of the defendant's driving and the extent of his negligence. I referred to this at the commencement of the judgment as a matter that I would need to resolve. The plaintiff asserts that the defendant deliberately drove his car part way off the roadway causing it to collide with a ditch or culvert and flip over, landing on its roof. The defendant denies that it was a deliberate act and asserts that the car left the roadway as a result of a combination of his intoxication and his being distracted by having a conversation with the person in the passenger seat. At this point I note the tragic fact that the person in the passenger seat died in the accident. 11The resolution of that second issue is central to a determination of the third and fourth issues. 12The third issue is whether the accident and consequent damage was foreseeable. If it is the case that the defendant drove deliberately off the roadway, the plaintiff says it was not foreseeable. Implicitly, I think, the plaintiff concedes the issue of foreseeability if my finding is that the accident was caused as a result of inattentiveness or carelessness arising from the defendant's intoxication. The defendant says that the accident was foreseeable, on either finding, based on the level of the defendant's intoxication and the expert evidence of how such a level of intoxication might impact on a driver's behaviour. 13The fourth issue concerns the concept of "relative causal responsibility" and how the responsibility for the plaintiff's injuries should be apportioned between the parties. The question here is what is "just and equitable" in all of the circumstances. If the actions of the defendant involved deliberate skylarking by leaving the roadway, the degree to which any award of damages should be reduced as a result of the plaintiff's contributory negligence would be greatly diminished. The plaintiff submits that if I find that the defendant deliberately left the roadway, the reduction for contributory negligence should be zero. A brief overview of relevant events 14The following is taken largely from the undisputed parts of the defendant's evidence. 15On 4 October 2009 the defendant was 22 years of age. He and some housemates were hosting a small "party" in celebration of the NRL (rugby league) grand final match. The party was at their home in Wren Crescent Calala. Calala is around 6-7 kilometres to the south of the city of Tamworth. There were around 12 or 13 people at the party. One of the defendant's flat-mates (Suzie) cooked a roast dinner "for everyone". A lot of the young men at the party were drinking beer and rum. The defendant did not notice any of the male attendees not drinking alcoholic drinks. The double negative in the last sentence is drawn from the question eliciting the evidence. 16The defendant's sister was also at the party and she had invited the plaintiff. The plaintiff and the defendant had not met before that night. The defendant was not sure when the plaintiff arrived but he thought it was after the football. Later in the evening, the defendant was told that the plaintiff was "seeing" his sister. After learning that, he spoke to the plaintiff. He estimated that he spoke to him for "probably 10, 15 minutes or so." He "would have been" drinking at the time of the conversation. 17Later in the evening, there was an incident involving Suzie's laptop computer. Somebody had stood on it and the screen was cracked. Suzie's boyfriend (Jamie) demanded to know who had broken the computer. According to the defendant: "He ended up getting very aggressive, threw the laptop himself. Basically wanted to fight. Wanted someone to own up for it and wanted to fight whoever it was. He basically turned around and said 'anyone who's not meant to be staying here, get the F out of my house.'" 18The defendant said to a couple of the boys (presumably including the plaintiff) "youse have got to move on tonight. I'll give you a lift home". Five people got into the car including the defendant and the plaintiff. Daniel Bailey, a long term friend of the defendant, sat in the front passenger seat. Aaron Marshall sat in the rear behind the driver. Scott Clow sat in the rear in the middle. The plaintiff was seated in the rear seat on the passenger side. Before they left, the defendant gave evidence that he told the passengers that he; "was going to take the back roads to avoid the police because, yes, I had been drinking. I didn't feel like I was over the point 05 alcohol limit. But being a P - plater I was obviously over the limit." 19Somebody asked if it he was all right to drive and the defendant said that he was fine. 20The car travelled on back roads to a place called Kootingal to the north east of Tamworth. They stopped at Kootingal for a "piss break". They were headed to Upper Moore Creek Road at Moore Creek to the north of Tamworth. 21The accident occurred at around 11:15 pm when the vehicle collided with a culvert (or ditch) just off the side of the roadway. The vehicle rolled and came to rest on its roof. 22The defendant was observed to be very distressed at the scene. He was spoken to by a police officer. There is a dispute about what was said. 23At 12:45 am on 5 October, a blood sample was taken from the defendant at the Tamworth Base Hospital. It was analysed and certified to have 0.047 grams of alcohol per 100 millilitres of blood. The seat belt issue and its residual relevance 24As I have said, in the course of the hearing the defendant abandoned reliance on the assertion that the plaintiff contributed to his own harm by failing to wear a seat belt. 25However, the matter retains some residual relevance to a consideration of other evidentiary issues. 26The defendant says that he asked the passengers whether they were wearing their seat belts and that they said that they were. However he did not check whether they were wearing their seat belts. The passenger in the middle of the back seat was clearly not wearing a seatbelt because the car was not fitted with a seat belt in that location. The defendant was, or must have been, aware that his car did not have the capacity safely to transport four passengers. In circumstances where he knew that at least one of the passengers could not have been wearing a seat belt, it is difficult to accept that he went through the process of checking whether the other passengers were wearing seat belts. I do not accept his evidence as to this issue. 27The second peripheral relevance of the evidence concerning the seatbelt concerns the integrity or reliability of various comments made in a police "COPS" record (Ex J). The defendant placed reliance on certain comments made in that document as to the appearance of the defendant. These comments are said to be relevant to the extent of the defendant's impairment and an assessment of whether the plaintiff ought to have been aware of that impairment. However, the COPS report in at least one respect is clearly inaccurate. It records that the passenger in the centre of the rear of the vehicle was wearing a seatbelt. That is plainly wrong. It is agreed that there was no seat belt fitted in the centre of the rear of the vehicle. Whether the plaintiff knew or ought to have known that the defendant was intoxicated 28Resolution of the question of whether the plaintiff knew or ought to have known that the defendant's driving would be impaired as a result of his level of intoxication is not straightforward. The plaintiff's brain issue means that he was unable to give any evidence on the subject. 29Some of the relevant facts and circumstances are the following: (1)The plaintiff and the defendant were not known to one another such that the plaintiff would have been familiar with the way the defendant behaved when intoxicated. Nor could he know the defendant's behaviour when sober so as to compare it to his behaviour on the night. (2)The defendant spoke to the plaintiff at the party. The defendant estimated that they spoke for a period of around 10-15 minutes. Accordingly, there was some opportunity for the plaintiff to gauge the defendant's sobriety or state of intoxication. However, that opportunity was not an extensive one. (3)The defendant was of the opinion that he was not affected by alcohol to the extent that his driving would be impaired. He was a P plate driver and believed that there was a "zero tolerance" to his ability to drive after drinking. However he was eligible for his full ("black") licence whereupon he would have been permitted to drink but not to the extent that his blood alcohol reading was greater than .05%. The defendant's belief was that his blood alcohol reading at the time that he undertook the journey was less than .05% (4)The defendant said, and I accept, that one or more of the people travelling in the car asked him on at least one occasion, and probably on more than one occasion, whether he was okay to drive. (5)When asked that question, or those questions, the defendant assured those present that he was okay to drive. (6)The defendant took a most circuitous route to Moore Creek. It was, or must have been, obvious to all concerned that this was a deliberate action calculated to avoid the possibility of a random breath test by the police. (7)Up until the time that the car stopped for the occupants to have a toilet break, the defendant says that his driving was normal and the trip had been uneventful. (8)The blood alcohol reading was 0.047 around an hour after the accident. (9)The joint expert opinion is that "the most likely range of blood alcohol concentration (BAC) at the time of the accident was approximately 0.07%, but could have been as high as 0.084% or as low as 0.062%." (10)The expert evidence suggests that there was unlikely to be any "signs of frank intoxication", for example, slurred speech and impaired balance. (11)However, the joint opinion of the experts is that there "may have been observable signs of intoxication" but those signs "are likely to have only been mild". The observable signs may have included "one or more of: changes in mood; disinhibition; talkativeness and sociability. Facial flushing may also be observable towards the upper range of BACs". 30The experts disagreed as to whether a reasonable person would or should have known that the defendant's capacity to drive a motor vehicle was impaired as a consequence of the consumption of alcohol. Professor Christie (retained by the defendant) was of the view that there was a "moderate likelihood that a reasonable individual would or should have known" (Ex K1). Dr Robertson (retained by the plaintiff) expressed reservation as to that opinion. He believed it would "not be possible to form the opinion that [the defendant] was 'so affected by alcohol as to have an adverse effects (sic) on his ability to drive a motor vehicle'" (Ex L). Professor Christie relied on various studies that suggested, for example, that "the defendant would therefore have been judged to be intoxicated by approximately 14-68% of sober observers". Dr Robertson was more circumspect owing to the difficulty in estimating how long the plaintiff had the defendant under observation and the fact that the plaintiff was only 16 years of age at the time and that it was dark. The joint expert report (Ex M) noted this disagreement but did not resolve it. The experts gave evidence concurrently but there was no resolution of the disagreement. However, one thing that did emerge is that both experts agreed that at the time that the trip commenced, the BAC was likely to be higher than it was at the time of the accident. 31I have found the opinions of the experts helpful in determining the likely range of BAC at relevant times and the likely signs of intoxication that would have been exhibited by the defendant. 32However, the expert evidence as to whether a reasonable person would or should have known that the defendant was impaired is less helpful. I do not find the studies relied on by Professor Christie to be of much assistance in evaluating the issue. Dr Robertson's reservations are based on reasonably obvious matters. 33The defendant also relies on observations in the COPS report (Ex J) as to the appearance of the defendant after the accident. In particular he placed reliance on the entry on page 4 that the defendant's breath smelt strongly of alcohol, that his eyes were glazed and that his speech was confused. Reliance was also placed on the opinion that the person was "moderately" [affected by alcohol]. The author of the COPS report did not give evidence. The only police officer who gave evidence (Senior Constable Hooley) denied passing on a number of those observations to the author of Ex J. He denied describing the defendant as being moderately affected by intoxicating liquor and denied saying that his eyes were glazed. The defendant went on to assert that if Mr Hooley had not made those observations they must have been made by the author of the report at the hospital. That opportunity arose some time later and the defendant says, based on some of the expert evidence, that if he was displaying those signs at the hospital hours after finishing drinking he would have been displaying even more obvious signs at the time the plaintiff spoke to him. 34I place very little, if any, weight on the material in the COPS report. Some of the observations are clearly explicable by the state of emotional shock in which the defendant found himself in the immediate aftermath of the collision. The experts agreed with that proposition when it was put to them by counsel for the plaintiff. In particular, the fact that the defendant's eyes were glazed may be attributable to the fact that he had been crying. Similarly, the fact that he appeared confused and pale may be explained by his state of shock. Further, the COPS report is clearly inaccurate in respect of the assertion (on page 5) that the centre rear passenger was wearing a seat belt. 35In light of the inadequacy of the evidence surrounding the COPS report, I am unable to find that the defendant was exhibiting the signs described in the COPS entry, let alone that the plaintiff or a reasonable person would have observed them at the party some time earlier. 36As I have said, the issue is a difficult one. However, on the balance of probabilities, I have reached the conclusion that a reasonable person in the plaintiff's position ought to have known that the defendant was intoxicated to a degree whereby his driving would be impaired. I have reached that conclusion by reference to all of the circumstances and evidence prevailing at the time, including that catalogue of circumstances referred to in paragraph [29]. 37I am particularly persuaded by two circumstances. First, the fact that the group took a most indirect route to the destination. The most logical and time efficient route would have taken the party through the centre of the city of Tamworth. The approach from the south would have included driving along the New England Highway, the major artery into the city, and along Peel Street, the main street of the city. A reasonable person, sitting in the back of the motor vehicle would have known, or ought to have known, that the route was unusual and that the most likely reason for taking that route was the driver's fear that he was over the legal limit. 38The second factual circumstance is that at least one of the passengers in the car asked the defendant if he was okay to drive. That evidence comes from the defendant himself and I accept it, in spite of some misgivings I have in relation to other parts of his evidence. This is relevant to two aspects of this question. First, it shows that at least one person in the car was concerned about the sobriety of the defendant. Second, the fact that the question was asked would alert a reasonable person in the plaintiff's position to the risk that the defendant may have been impaired as a result of alcohol consumption. 39While I am satisfied that the plaintiff knew or ought to have known that the defendant's driving may be impaired, his knowledge of the extent of that impairment would have been slight. I am far from satisfied that the plaintiff could have had any warning that the defendant would deliberately drive off the road (assuming that that is what happened). What was the manner of driving which caused the accident? 40The plaintiff's case is that the defendant deliberately drove off the road in order to frighten the back seat passengers who had asked him on more than one occasion whether he was okay to drive. 41The defendant's case is that the vehicle left the roadway as a result of what might be described as momentary inattention when the defendant turned to speak to the person sitting in the passenger seat. 42The defendant gave the following evidence: "Q. Can you describe for us the events that led up to the accident? A. I was talking to Daniel Bailey. I'd taken my eyes off the road to speak to him, suggesting that I'd scare the boys in the back because they kept asking me if I was right to drive. I suggested to Daniel that I take out a guidepost and he said no, don't be stupid just in case something happens. With that I've turned back to the road and I was halfway off the road. By the time I was able to put my left hand back onto the steering wheel we had already gone into the culvert." 43In cross-examination the defendant gave the following evidence: "Q. There are from time to time on that section of road Upper Moore Creek Road as you come towards the Stirling Road intersection there are guide post markers, aren't there? A. Yes. Q. Typically in those days the guide post markers the flexible plastic ones that wave over rather than being the fixed wooden ones? A. Yes. Q. And you knew at the time that those flexible markers could be hit and they wouldn't damage anything? A. Yes." 44The defendant said that, by the time of the accident, he had been driving for around half an hour and that the vehicle did not leave the roadway during that period. The plaintiff contends that it is not a coincidence that the vehicle left the roadway at precisely the time that the defendant, on his own account, suggested to Mr Bailey that he would deliberately drive the car off the roadway to strike the flexible guideposts in an attempt to scare the boys in the back seat of the car. 45The plaintiff relies on a conversation that the defendant had with a police officer shortly after the collision. The defendant says that he has no memory of any such conversation. I accept that such a conversation occurred. The police officer recorded a number of details in his notebook and many of those details are accurate, suggesting that the defendant did in fact say the things recorded. For example the officer recorded the name of the defendant's girlfriend, the fact that he said he was afraid of going to gaol for manslaughter and that his girlfriend would not wait for 20 years. Critically, the police officer records the defendant as having said this: - "I was just trying to scare them. I just went to take out a guidepost. I didn't know the ditch was there. I've killed my best mate. That should be me in there." 46Constable Richard Hooley gave evidence of his attendance at the crash scene at around 11:30 pm on 4 October 2009. Mr Hooley gave evidence of observations he had made of the scene but it is difficult in the absence of any expert evidence to draw any conclusions from that evidence as to precisely what happened. In particular, I cannot draw any inferences from Mr Hooley's observation relevant to whether the defendant deliberately drove on to the verge of the roadway or whether he did so as a result of negligence and inattention. 47The real issue arising from Mr Hooley's evidence concerns the words and admissions that he attributed to the defendant in the immediate aftermath of the collision. Mr Hooley said that he overheard the defendant talking and recorded the following conversation: "The defendant said 'I'm fucked, I know I am going to jail for manslaughter. I've just got a new girl, she's not going to wait 20 years. I was just trying to scare them, I just went to take out a guidepost, I didn't know the ditch was there. I've killed me best mate, that should be me in there I said: 'Who's your mate?' He said: 'Daniel, Daniel Bailey.' I said: 'Where does Daniel live?' He said: 'Somewhere out at Calala.' I said: 'Who does he live with?' He said: 'His old man?' I said: 'Who else was in the car?' He said: 'I don't know them, I just met them tonight. I was just taking them home. My flatmate was going to bash them, so I got them out of there. I was overloaded, this thing is only meant to take four, and now I've killed me mate. Why aren't they working on him? I've only had a few drinks. I was fine. I've driven pissed heaps of times, I was far worse than this and I always made it home alright.'" 48That version of the conversation is taken from a statement made by Mr Hooley on 6 October 2009 (Ex F). It accords with notes that Mr Hooley said were taken at the scene of the collision (Ex G). Those notes are contained in an official police notebook (number F456623 from pages 67-70). As to the suggestion that he made the notes some time later, Mr Hooley said that he was certain they were taken at the scene and within minutes of the conversation occurring. He pointed to the fact that during the course of the narrative of the conversation with the defendant there is inserted the details of a Catherine Gleason. This was a witness at the scene. The entry can be seen at the top of page 69 of the notebook and includes Ms Gleason's date of birth, address, 'phone number and a very brief description of what she saw and heard. There was no further cross examination on this subject and I accept the evidence of Constable Hooley that the notes were taken within a number of minutes of the conversation that he alleges that he had with the defendant. 49Mr Hooley gave similar evidence when he was called by the plaintiff at the hearing (T 64): "I heard him speaking. He was initially on his phone when I first arrived and then I'd overheard him saying that, that he was fucked, that he was going to go to gaol for manslaughter. He was going to do 20 years. He also made mentioned that he had a new girlfriend, that she wouldn't wait around for him. He said that he'd killed his best mate and he also made mention that 'That should be me in there'. He also said that 'I, I, I just wanted to scare them. I went to take out a guide post and I didn't know the ditch was there.'" 50It is significant that a number of details in the notebook and in the evidence of Mr Hooley are clearly and objectively correct. For example, according to the notes, the defendant said that he had only had a few drinks and that he did not know the people in the back seat who he was "just taking home because his flatmate was going to bash them". He also referred to the fact that the car was overloaded and that it was only supposed to carry four people (that is the driver and three passengers). 51The fact that the notes contain details that are objectively accurate and the fact that they were made a very short time after the conversation leads me to the conclusion that the notes represent an accurate, although not necessarily verbatim, account of the words spoken by the defendant in the half an hour or so after the collision. 52The defendant disputes the content of that conversation. I accept that he disputed the fact of that conversation, or the precise and significant details of it, when he was prosecuted for criminal offences in the District Court. So much is clear from exhibits C and D. Exhibit C is a draft fact sheet provided to the defendant by his solicitors in advance of the sentencing proceedings. It contains the words that are now subject to dispute. That is, it contains the admission by the defendant that he had deliberately driven on to the verge of the road in an attempt to take out a guidepost to scare the people in the back of the car. Exhibit C contains the defendant's notations as to the disputed parts of the fact sheet. Exhibit D is the fact sheet that was actually used at the sentencing proceedings. That fact sheet does not include the controversial part of the conversation. Part of Ex C is a letter from the Defendant's solicitor. The letter says "the DPP has agreed to delete any reference to the suggestion that you have attempted to take out a guide post." 53All that can be taken from this is that the defendant disputed then, as he does now, that he said those words to the police officer at the scene. It can also be taken that the prosecutor at the time made a forensic decision not to press that part of the conversation. However it is not proof one way or the other of what was said in the conversation with Constable Hooley. It shows that Mr Hooley (or another officer) had asserted the conversation and it shows that the defendant disputed it. 54The defendant says that he has no recollection of the conversation. I accept that there was such a conversation. I am unable to determine whether the defendant truly has no recollection of the conversation or whether he is being less than honest about that issue. 55Mr Hooley was cross-examined to the effect that he may have made a mistake in taking down the notes. It was suggested that the defendant merely said that he had spoken to the passenger seated next to him about at the possibility of deliberately driving into a guidepost to scare the people in the back. Mr Hooley denied this by saying "that's certainly not how I recall it". He went on to say that he had been cross-examined to the same effect in another court and "I definitely don't recall it being said like that." The defendant gave no evidence to support the proposition that that is the version that he gave to Constable Hooley. 56I found Mr Hooley to be an impressive witness even though he accepted that he did not write down the conversation he had with the defendant word for word. Nor did he ask the defendant to adopt the conversation in the notebook. While that may have been a breach of protocol and may have given rise to admissibility issues in criminal proceedings, no objection was taken to the evidence of the conversation, to the notes supporting it or the statement made a few days later. 57The inclusion in the notes and conversation alleged by Mr Hooley of the words "I didn't know the ditch was there" is, as the plaintiff submitted, a telling piece of evidence. It is a most unusual detail to record if it was not said. If it was said, the only sensible explanation for it is that the defendant was attempting to explain or justify his action in deliberately driving off the road. If he had simply veered off the road as a result of inattention or distraction, there would be no reason to volunteer that he did not know that the ditch was there. 58I accept that the conversation with Mr Hooley occurred in more or less the same terms that Mr Hooley recorded it. 59I do not accept the version given by the defendant that he merely spoke to the passenger about his idea of driving into a guidepost and off the roadway in order to scare the people in the back of the car. It strains credulity to think that at the very moment he had that conversation he did just happen to leave the roadway. 60Again, it is not necessary to determine whether the defendant is being deliberately dishonest in relation to this evidence or whether, with the passage of time and the impact of the emotional strain and guilt of feeling responsible for the death of his mate, he genuinely has no memory of what he said at the scene. Either way, I simply do not accept his evidence on this subject. 61I accept the evidence of the police officer that the defendant said words to the effect that he deliberately drove the car off the road to strike a guidepost to scare the boys in the back. 62I also accept that this admission was a true reflection of what happened and what caused the accident. 63I am fortified in this view by the fact that in the driving up to that point, there is no suggestion that the defendant was swerving on to the verge of the roadway. So said the defendant and the only other witness, Scott Clow, told police that "he was just concentrating on his driving" (Ex E). Scott Clow gave evidence (T 51-60) and his evidence demonstrated that his memory of events was poor. He said that he had no memory of events in the car and that his first memory was waking up in hospital. In his police interview he said that he could not remember how fast the car was going or "anything like that" (Ex E p 4). He then gave the following answers: Q: Do you recall if [the defendant] was swerving at any guide posts and being a bit silly and mucking around or anything like that? A: He was certainly being an idiot cause he knew he had a few drinks, so he was just concentrating on staying on the road." 64It needs hardly be said that the action of deliberately driving off the roadway to "take out a guidepost" constitutes negligence of an extremely high order. The boys in the back of the car, including the plaintiff, could have no possible forewarning that the defendant might drive in such an erratic and dangerous manner, let alone that he would do so deliberately. 65This is a matter that bears significantly upon the extent to which any contributory negligence of the plaintiff should result in a reduction of his damages. Does the Briginshaw standard apply? 66In argument, the defendant contended that the Briginshaw standard should apply if I was to make this finding against the defendant: Briginshaw v Briginshaw (1938) 60 CLR 336 at [68]. Reliance was placed on Asim v Penrose & anor [2010] NSWCA 366. 67In Asim v Penrose, the court was dealing with a purely circumstantial case. It was accepted at [141] that the finding contended for involved a rejection of the taxi driver's evidence and a conclusion that he (i) lied and (ii) had committed a criminal offence. 68Tobias JA at [140]-[143] discussed the relevant case law and noted the distinction between the criminal standard in circumstantial cases (where the evidence must exclude all reasonable inferences apart from the inference of guilt) and the civil standard where circumstantial evidence is relied upon. Reference was made to the extensive and helpful analysis in the judgment of Ipp JA in Palmer v Dolman [2005] NSWCA 361 where his Honour considered decisions such as Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Luxton v Vines (1952) 85 CLR 352, Neat Holding Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170 and Briginshaw itself: Briginshaw v Briginshaw (supra). 69The authorities stress that in a civil case, where reliance is placed on circumstantial reasoning, the evidence must go further than "the raising of conflicting inferences of equal degrees of probability". The inference must "not be regarded as mere conjecture or surmise": Bradshaw v McEwans (supra) at 5. 70If there is a different standard of proof - which is doubtful in view of what was said in Neat Holdings (surpa) at 171 (Mason CJ, Deane and Gaudron JJ) - it makes no practical difference to the resolution of the present case. 71I am comfortably satisfied on the clear and cogent evidence of Constable Hooley and the other evidence to which I have referred that the defendant deliberately drove the vehicle off the roadway in order to scare the boys in the back seat of the car. It is not a case involving "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw v Briginshaw at 361-362. Whether the defendant lied on oath, had a convenient memory of events or was simply unable to remember as a result of his deep remorse at having killed his friend, is not a matter that is necessary to resolve. As to making a finding that the defendant committed a criminal offence, that is not a controversial proposition - he pleaded guilty to such an offence and has been sentenced for it. Having said that, he was sentenced (or so it seems) on the basis of a less serious factual basis to that which I find (on balance) actually occurred. In that regard, the evidence goes well beyond the raising of conflicting inferences of equal degrees of probability. Factual findings relevant to the question of contributory negligence 72For the sake of clarity, I will now summarise the factual findings that I make relevant to the question of contributory negligence: (i)The defendant was mildly to moderately impaired by alcohol at the party and when he was driving. (ii)A reasonable person in the plaintiff's position would know, or ought to have known, that the defendant's driving would be impaired to some degree by the defendant's intoxication from alcohol consumption. (iii)The defendant's driving between Calala and Kootingal had been unremarkable. (iv)The accident occurred because of the defendant's deliberate act in driving his car off the roadway to hit a guidepost in order to scare the boys in the back. (v)The defendant made admissions to that effect to the police officer at the scene of the collision. (vi)While the defendant's action may have been influenced by the consumption of alcohol, the plaintiff had no warning that the defendant might conduct himself in this way. (vii)A reasonable person in the plaintiff's position would not reasonably have known, and could not have predicted, that the defendant would conduct himself in that way. The legal framework 73Division 8 Section 5R of the Civil Liability Act 2002 (NSW) provides: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributory negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) The matter is to be determined on the basis of what that person knew or ought to have known at the time. 74Section 5S provides: 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 75The principles of negligence referred to above are found at 5B of the Civil Liability Act: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) The risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) The risk was not insignificant, and (c) In the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) The probability that the harm would occur if care were not taken, (b) The likely seriousness of the harm, (c) The burden of taking precautions to avoid the risk of harm, (d) The social utility of the activity that creates the risk of harm. 76The Motor Accidents Compensation Act 1999 (NSW) provides: 138 Contributory negligence-generally (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. (2) A finding of contributory negligence must be made in the following cases: (a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, (b) where: (i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and (ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, (c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so, (d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so. (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage. (5) For the purposes of this Act, a deceased person is taken to have been convicted of an offence if any circumstances exist in respect of the deceased person which, but for the deceased person's death, would have resulted in the conviction of the deceased person for the offence or the proving of the offence against the deceased person. (6) This section does not exclude any other ground on which a finding of contributory negligence may be made. (7) For the purposes of this section, an alcohol or other drug-related offence is: (a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person's breath or blood, or (b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or (c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or (d) an offence, in connection with the driving of a motor vehicle, of: (i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person's blood and urine, or (ii) wilfully altering the concentration of alcohol or other drug in the person's breath or blood, or (iii) preventing a sample of the person's blood from being taken for analysis. 77In his written submissions on contributory negligence, the defendant reproduced sub-sections (1), (3) and (4) of s 138. It did not reproduce or otherwise rely on the provision in sub-s (2). I assume this is because the offence for which the defendant was convicted was not an "alcohol or drug-related offence" as defined in sub-s (7) and because the plaintiff was a minor. No reference to sub-s. (2) was made by either party in the written or oral submissions. 78I accept the defendant's submission that there is no evidence that the plaintiff's intoxication was such as to engage the provision of s 49 of the Civil Liability Act. 79In Nominal Defendant v Green [2013] NSWCA 219 Basten JA (with whom McColl JA and Sackville AJA agreed) said: "34. The trial Judge correctly identified the relevant principles as those derived from the judgment of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494: '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, ie of the degree of departure from 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.'" 80In Gordon v Truong [2014] NSWCA 97 Basten JA considered (at [14]-[18]) the difficulty in applying the general principles in s 5B (as imported into contributory negligence by s 5R) in the case where the plaintiff is the driver of a motor vehicle and the defendant is a pedestrian. His Honour went on to examine the purpose of s 5R by reference to the Review of the Law of Negligence: Final Report (September 2002). 81His Honour said at [19]: "If a defence of contributory negligence requires an apportionment of liability based upon the responsibility of each for the accident, the comparative exercise cannot be adequately carried out unless the degree of responsibility of the driver is assessed." 82The operation of the "somewhat complex statutory scheme" and its interaction with the common law was also considered by the Court of Appeal in T and X Company Pty Ltd v Chivas [2014] NSWCA 235 at [1]-[14] (Beazley P), [41]-[55] (Basten JA, Barret JA agreeing at [64]). The difference of views concerning the "capacity of a motor vehicle to inflict significant damage" referred to by the learned President do not arise in a case such as the present where the contributory negligence contended for is the action of the plaintiff in allowing himself to travel with an intoxicated driver. The risk of injury in a car accident gives rise to similar duties in the driver (to take precautions against foreseeable risk of injury to the passengers, pedestrians and other road users) and the passenger (to take precautions against foreseeable risk of injury to themself). The foreseeability and significance of the risk and whether a reasonable person in the plaintiff's position would have taken precautions against the risk: s 5B 83The risk that there would be a car accident with consequent injury because the defendant was impaired due to intoxication was foreseeable. 84However, the action of the defendant in deliberately driving off the roadway was not a foreseeable risk against which a reasonable person would take precautions. While it was foreseeable that the defendant may drive carelessly and with less than proper attention or that he may have made a mistake as a result of his intoxication, the action in deliberately driving off the roadway was entirely unpredictable. 85The question then is whether the "risk of harm" for the purpose of s 5B(1)(a) is the risk of harm that there would be an accident because the defendant's intoxication caused him to be careless, inattentive or make an error of judgment or whether the risk of harm caught by the section is more specifically directed (the risk that the defendant would deliberately drive off the road). This distinction was not subject of argument. In view of the decision that I have reached as to what is "just and equitable" for the purposes of s 138(3) Motor Accidents Compensation Act, the distinction does not impact upon the final outcome of the case. However, for the sake of clarity and transparency, I should record my findings. 86In Roads and Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330 Gummow J (at [60]-[61]) stressed the importance of identifying or characterising correctly and with precision the risk of harm against which it is said that precaution ought to have been taken. Similarly, in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 both Basten JA (at [7]) and Meagher JA (at [22]-[25]) emphasised the need to identify the foreseeable (and not insignificant) risk against which a reasonable person would take precautions. In that case, the relevant risk was the "risk which materialised when the plaintiff slipped and fell": per Basten JA at [7]; see also Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [139] (Gleeson JA). 87In McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Garling J (dissenting in the outcome) referred to the "mechanism of injury" as the relevant inquiry when considering the risk of harm for the purpose of s 5B. 88In Reed v Warburton [2011] NSWCA 98 Basten JA (with whom Hodgson JA and Handley AJA agreed) noted the distinction between a risk that compressed hay would catch fire and the risk that loose straw might ignite. His Honour held at [19] that: "The risk of harm should therefore be more broadly identified as the risk of straw igniting as a result of heat emanating directly or indirectly from the oxyacetylene torch." 89The report of Professor Christie (Ex K1) explained that the impact of a BAC in the vicinity of 0.07% would result in "mild intoxication and impairment". Professor Christie noted a number of variables including (at p 8 of Ex K1) that it was "quite likely that the defendant experienced acute tolerance during the prolonged drinking episode and would have been less impaired than would have occurred if he consumed alcohol for only 1-2 hours". He concluded that regardless of the variables "the defendant very likely suffered mild impairment by alcohol at the time of the accident". 90Professor Christie also described more generally the impact of alcohol on a driver's ability: "The cognitive and psychomotor impairments produced by alcohol which contribute to the ability to safely drive a motor vehicle include impairment of balance, impairment of fine motor control, impairment of gross motor control, decreased alertness, decreased perceptual ability, decreased reaction time, decreased peripheral visual attention, impairment judgment of speed and distance and impaired decision making. Alcohol also affects mental and cognitive ability (ie judgement, reasoning, memory)." 91None of the effects described encompass the possibility that a person who was mildly intoxicated or impaired would deliberately drive off the roadway. In my view, that risk was not a foreseeable risk in the sense that it was a risk of which the plaintiff knew or ought to have known: s 5B(1)(a). Nor was it a significant risk: s 5B(1)(b). 92I have also come to the conclusion that a reasonable person in the plaintiff's position would not have taken precautions against the risk: s 5B(1)(c). The obvious precaution that the plaintiff could have taken was not to get into the car. However, the fact that, there are actions that the plaintiff could have taken that would, with the benefit of hindsight, have avoided the loss is not the relevant test. In Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [105], Hayne J adopted the "calculus" of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40. The enquiry "is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim." His Honour went on to say at [124] that "[t]he inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk." 93In the circumstances, it was not unreasonable for the plaintiff not to have taken the precaution of not riding with the defendant. Assuming (against my finding) that the risk was foreseeable and not insignificant, the defendant's reckless conduct in deliberately driving off the roadway had an exceptionally low probability of occurring: s 5B(2)(a). This is particularly so in view of the fact that the defendant's level of intoxication was moderate at most. This was not a case where the parties had been drinking together over many hours and where the defendant was obviously very drunk. The defendant re-assured the plaintiff and the others in the back of the car that he was all right to drive and his driving between Calala and Kootingal was uneventful. The situation confronting the plaintiff was a difficult one. For reasons outside of his control, he was ejected from the house in circumstance involving some aggression. He was some distance from home and there was no evidence as to what other options he had. 94For those reasons, the defendant has not established contributory negligence. Apportionment for contributory negligence 95Against the possibility that my finding as to contributory negligence is wrong, I should record my conclusion as to what is a "just and equitable" reduction for the contributory negligence involved in the plaintiff getting into the car knowing that the defendant was at least somewhat impaired as a result of his intoxication. 96I accept the plaintiff's submission that, in the particular circumstances of the case, "there should be no apportionment for contributory negligence". 97I have reached that conclusion for the following reasons: (i)The defendant's negligence in deliberately driving off the roadway was conduct of a most egregious and reckless kind. (ii)The defendant deliberately conducted himself in that way in an attempt to scare the boys in the back of the car. (iii)The boys in the back of the car, including the plaintiff, had no warning that that the defendant would take that completely irresponsible and deliberate action. The defendant seems to have taken the action because one or more of them had asked if he was all right to drive. (iv)The defendant's level of intoxication was moderate at most and, more likely, "mild". The case can be contrasted with a number of the decided cases where the driver's state of intoxication was severe and where the plaintiff had been drinking with the defendant over a number of hours. (v)The defendant re-assured the plaintiff and the others in the back of the car that he was all right to drive. (vi)The defendant's driving between Calala and Kootingal was uneventful. When the plaintiff re-entered the car at Kootingal he was entitled to assume that the defendant would continue to drive sensibly and carefully. (vii)The plaintiff was only 16 years of age and was placed in a difficult, if not emergency, situation as a result of the sudden and aggressive conduct of one of his hosts (Jamie). (viii)Jamie made threats to fight the person that he held responsible for the damage to the laptop computer. (ix)Jamie told those who were "not meant to be staying here" to "get the fuck out of my house." (x)The house was a distance from the city of Tamworth and there is no evidence of what alternative the plaintiff had in terms of leaving Calala once Jamie had become aggressive and demanded that he (and others) leave the premises. 98In Nicholson v Nicholson (1994) 35 NSWLR 308 Kirby P (with whom Meagher JA agreed) said (in relation to analogous, although not identical, legislation): "I do not believe that it was parliament's purpose by the language used in s 74(3) of the Act to produce a logically inconsistent result. It is open to a trial judge to reduce a plaintiff's damages by zero per cent if it would not be 'just and equitable in the circumstances' of the case to do otherwise and if that were the only way to produce a 'just and equitable' result. In this case, her Honour should not have felt compelled to reduce the cross-respondent's damages by a nominal 1 per cent. The law should discourage such charades which bring it into disrepute." Compare the comments of Mahoney JA at 333-334. 99In my opinion the present case is an example of one where it is just and equitable to reduce the plaintiff's damages by zero per cent. Any reduction resulting from the defendant establishing that the plaintiff ought to have been aware of the moderate or slight impairment to the defendant's driving ability would be so small that it would fall into the kind of reduction criticised in Nicholson and Nicholson. VERDICT AND ORDERS 100For those reasons there will be a verdict for the plaintiff in a sum that will not be reduced as a result of contributory negligence. 101The parties agreed after the hearing that the agreed and previously approved damages of $1,268,520.00 should be increased by $369,542.00, representing the agreed costs of fund management. That calculation, which is agreed, derives following the notional deduction of various statutory deductions and application of a relevant multiplier according to recent authorities the details of which need not be further articulated: see Gray v Richards [2014] HCA 40. 102The result will be a verdict for the plaintiff in the sum of $1,638,062.00 The parties agreed that costs should follow the cause and no application to vary the usual order as to costs has been made. 103I make the following orders: (1)Verdict for the plaintiff in the sum of $1,638,062.00. (2)The defendant is to pay the plaintiff's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2014