Avram v Gusakoski
[2006] WASCA 16
•6 FEBRUARY 2006
AVRAM -v- GUSAKOSKI [2006] WASCA 16
| (2006) 31 WAR 400 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 16 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:169/2004 | 7 DECEMBER 2005 | |
| Coram: | MALCOLM CJ PULLIN JA MURRAY AJA | 6/02/06 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | MARIO AVRAM TONY GUSAKOSKI |
Catchwords: | Tort Negligence Drunken driver Accident Injury to passenger Whether no breach of duty or voluntary assumption of risk defences open to the defendant Contributory negligence Seatbelt removed by passenger |
Legislation: | Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) |
Case References: | Abdallah v Newton (1998) 28 MVR 364 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Cook v Cook (1986) 162 CLR 376 Czatyrko v Edith Cowan University (2005) 214 ALR 349 Fox v Percy (2003) 214 CLR 118 Gala v Preston (1991) 172 CLR 243 Haynes v Harwood [1935] 1 KB 146 Howard v Hamilton (1996) 16 WAR 292 Insurance Commissioner v Joyce (1948) 77 CLR 39 Insurance Commissioner v Joyce (1948) 77 CLR 39 Jeffries v Fisher [1985] WAR 250 Joslyn v Berryman (2003) 214 CLR 552 McPherson v Whitfield [1996] 1 Qd R 474 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Roggenkamp v Bennett (1950) 80 CLR 292 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 Dann v Hamilton [1939] 1 KB 509 Hanson v Motor Accidents Insurance Board (1987) 6 MVR 131 Howard v Hamilton (1996) 16 WAR 292 Jansons v Public Curator of Queensland [1968] Qd R 40 Miller v State Government Insurance Commission (1993) 9 SR (WA) 81 Municipal Tramways Trust v Ashby [1951] SASR 61 O'Shea v Permanent Trustee Company of New South Wales Limited [1971] 1 Qd R 1 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AVRAM -v- GUSAKOSKI [2006] WASCA 16 CORAM : MALCOLM CJ
- PULLIN JA
MURRAY AJA
- Appellant
AND
TONY GUSAKOSKI
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
Citation : GUSAKOSKI -v- AVRAM [2004] WADC 205
File No : CIV 454 of 2003
Catchwords:
Tort - Negligence - Drunken driver - Accident - Injury to passenger - Whether no breach of duty or voluntary assumption of risk defences open to the defendant - Contributory negligence - Seatbelt removed by passenger
(Page 2)
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr M H Zilko SC & Mr M A McAuliffe
Respondent : Mr V V Ozich
Solicitors:
Appellant : Dibbs Barker Gosling
Respondent : V Ozich & Co
Case(s) referred to in judgment(s):
Abdallah v Newton (1998) 28 MVR 364
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Cook v Cook (1986) 162 CLR 376
Czatyrko v Edith Cowan University (2005) 214 ALR 349
Fox v Percy (2003) 214 CLR 118
Gala v Preston (1991) 172 CLR 243
Haynes v Harwood [1935] 1 KB 146
Howard v Hamilton (1996) 16 WAR 292
Insurance Commissioner v Joyce (1948) 77 CLR 39
Jeffries v Fisher [1985] WAR 250
Joslyn v Berryman (2003) 214 CLR 552
McPherson v Whitfield [1996] 1 Qd R 474
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Roggenkamp v Bennett (1950) 80 CLR 292
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
(Page 3)
Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65
Case(s) also cited:
Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121
Dann v Hamilton [1939] 1 KB 509
Hanson v Motor Accidents Insurance Board (1987) 6 MVR 131
Howard v Hamilton (1996) 16 WAR 292
Jansons v Public Curator of Queensland [1968] Qd R 40
Miller v State Government Insurance Commission (1993) 9 SR (WA) 81
Municipal Tramways Trust v Ashby [1951] SASR 61
O'Shea v Permanent Trustee Company of New South Wales Limited [1971] 1 Qd R 1
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Suncorp Insurance & Finance v Blakeney (1993) 18 MVR 361
(Page 4)
1 MALCOLM CJ: In my opinion, this appeal should be dismissed for the reasons to be published by Pullin JA with which I am in entire agreement. I am also in general agreement with the additional comments and reasons stated by Murray AJA.
2 PULLIN JA: This is an appeal against the judgment of Eaton DCJ, who awarded damages for personal injury to the respondent after reducing that award because of the respondent's contributory negligence.
3 The evidence reveals that the respondent and appellant consumed a large quantity of alcohol and both were drunk. The respondent understood that he would be driven home by Joshua Reid who had not been drinking. Joshua Reid went out to the vehicle and sat in the driver's seat with the engine running. The respondent got into the back seat behind the passenger seat. They waited for the appellant. The appellant appeared and in terms which the trial Judge described as "intimidating and demanding", indicated that he intended to drive. He was intimidating, not only because of his aggressive manner in demanding the keys, but also because of past experience. The appellant was a big man and had in the past assaulted the respondent and intimidated Reid. Not withstanding the intimidation, the respondent from the back seat called out "Josh, don't let him drive. He's under fine suspension and he's drunk so don't let him drive". The appellant and Reid argued but Reid gave in, left the driver's seat and went around to the passenger's seat. The appellant got into the driver's seat and the vehicle moved off.
4 The respondent said that the period of time between the appellant demanding the keys and the appellant driving off was between 30 to 45 seconds. Reid, on the other hand, said that they argued for between five and 10 minutes. This difference in the evidence was not resolved by his Honour. However, it was only after the argument had concluded - whether it took five to 10 minutes or only a few seconds - that it became evident that the appellant was going to drive. This gave the respondent only a very short time in which to decide whether he would stay in the vehicle or get out. He had to consider a number of factors in making that decision. They are referred to below.
The law
5 It is clear that, in the absence of legislation, and in the type of circumstances described above, it is open to a defendant to plead that he owed no duty or did not breach his duty of care to the passenger, to plead voluntary assumption of risk or plead contributory negligence. The relevant authorities are set out in the judgments of McHugh and Kirby JJ
(Page 5)
- in Joslyn v Berryman (2003) 214 CLR 552. See in particular Insurance Commissioner v Joyce (1948) 77 CLR 39 and Roggenkamp v Bennett (1950) 80 CLR 292. As Sir Francis Burt said in Jeffries v Fisher [1985] WAR 250 at 252, the latter two authorities compel this Court to accept that no breach of duty and voluntary assumption of risk are defences open in these circumstances. Since then, Cook v Cook (1986) 162 CLR 376; Gala v Preston (1991) 172 CLR 243 and Joslyn's case have reconfirmed that the no breach of duty defence is available (or in an extreme case "no duty"; see Joslyn at [29]). I will refer to the no breach of duty and the no duty defence as the "no duty" defence. The matters to be considered in relation to each defence, and the onus of proof in each are discussed in Joslyn and Jeffries. The accident occurred before s 5L was inserted in the Civil Liability Act 2002.
The trial Judge's decision
6 The trial Judge referred to Joslyn v Berryman (supra) and Insurance Commissioner v Joyce (supra), however, his Honour then said at [37] that:
"I am certainly not prepared to hold, in the circumstances of this case, that there was no duty owed by the defendant to the plaintiff when he took the wheel of the vehicle. Clearly he owed a duty to both passengers. Equally clearly, he was in breach of that duty. Neither am I, in the circumstances of this case, prepared to hold that the plaintiff voluntarily assumed the risk of the injury that he subsequently suffered."
7 At [39] he said:
"This is a case where, in my view, the plaintiff's claim should not be defeated by invoking the defence of injuria or holding that there was no duty or no breach of duty. It is a case that calls for an apportionment of liability."
Grounds of appeal
8 The first ground of appeal reads:
"The learned trial Judge erred in law in seeking to determine the matter as one raising issues of contributory negligence only and not determining the matter in accordance with the principles that there was no duty of care and/or voluntary assumption of risk on the part of the Respondent (Plaintiff)."
(Page 6)
9 There was a second ground of appeal, but during the hearing counsel for the appellant said that it should be read as raising the same point as ground 1.
10 Although the learned trial Judge said that he was dealing with the argument about no duty and voluntary assumption of risk "in the circumstances of this case", he expressed himself in terms that he was "not prepared" to hold that there was no duty owed or that the plaintiff voluntarily assumed the risk of injury. At [39], his statement that this was a case where he thought that the claim "should not be defeated" by the defences of voluntary assumption of risk or no duty, also suggests that he was setting his mind against the possibility that those defences were open. The law is that the defences were open and he should have considered them.
11 The first ground should therefore be upheld, but that does not mean that the judgment should be disturbed. This is an appeal by way of rehearing and this is a case where the appellant agrees that this Court is in as good a position as the trial Judge to draw its own conclusions from the evidence and facts as found. The task of this Court is therefore to decide whether the no duty defence or the voluntary assumption of risk defence should succeed.
The "no duty" defence
12 In Jeffries v Fisher (supra), Burt CJ said at 253 that:
"… knowledge alone is enough to attenuate the duty which lies at the basis of the no breach of duty principle."
13 Burt CJ was speaking of the importance of knowledge in relation to the no duty defence and voluntary assumption of risk defence. He could not have meant that knowledge alone would be enough to establish the no duty defence, because that would mean that a person with knowledge, but held in a car against that person's will, would be owed no duty or the reduced standard of care to be observed by a drunken driver. The additional relevant aspect is revealed in Dixon J's judgment in Insurance Commissioner v Joyce (supra) at 57 where he said:
"If he [the passenger] knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty." (Emphasis added)
(Page 7)
14 Thus the Court must be satisfied that the passenger not only knows, but also accepts, that he or she is to be driven by an inebriated driver. In other words, that the passenger must make a decision to travel as a passenger with a drunken driver.
15 In my opinion, the respondent was entitled to a reasonable period of time to make the decision in circumstances where he was unexpectedly confronted with the need to make it and when he was already in the car.
16 The respondent expressly stated that he would not accept that he should be driven by the appellant in his inebriated state. When the appellant demanded to drive, the respondent voiced his objection. He was entitled to assume that, until Reid left the driver's seat, Reid would be driving. Reid was waiting in the driver's seat. Reid owned the car. Reid resisted the aggressive demands made by the appellant for the keys and argued with the appellant. Reid was backed up by the respondent. Whether Reid and the appellant argued for a few seconds or a few minutes, does not matter because the respondent was not called upon to make any decision to accept the appellant as the driver until Reid unexpectedly left the driver's seat and went to the passenger's seat, the appellant took up the driver's seat and drove off. This only took a few seconds.
17 The appellant was entitled to a reasonable time to weigh up the inconvenience of unexpectedly finding himself without a lift to his destination against the risk of remaining in the vehicle with the appellant driving. He had a number of factors to consider and he was tired and affected by drink. If he were to leave the car he had to decide whether to locate his possessions or leave them in the car. He had no money and his phone had no "credit" so he could not use it. It was about 9 o'clock at night. He had acted responsibly by urging Reid to resist the appellant's aggression, and the appellant's conduct had forced him to make a decision. In my opinion the respondent was not given enough time to make a judgment. Thus, in the circumstances of this case, it could not be said that the respondent agreed to "accept" the services of the inebriated appellant as driver. The appellant's services were forced on him.
18 The appellant points to the fact that the respondent, when cross-examined, said he "couldn't be bothered moving". However, he prefaced that statement by saying he was tired and he had too much to drink that day, and he had immediately before that answer explained that only 30 to 45 seconds expired between the appellant's demand for the keys and the car moving off. Allowing for some time for the argument to
(Page 8)
- take place, the respondent was given only seconds to take in the unexpected change of circumstances, to take into account the considerations I have mentioned and decide whether to leave the car or not. In my opinion it was an unreasonably short period of time. Given more time for reflection, he may have decided to leave the vehicle. The appellant did not give him that opportunity.
19 Once he was in the car and it was moving, it is fanciful to suggest (as was suggested in cross-examination) that he should ask to get out. The appellant was not in the mood to comply with that kind of request. It is fair to say, as counsel for the respondent said, the appellant in effect commandeered the car against the wishes of the respondent and Reid.
20 In my opinion the no duty defence should fail.
Voluntary assumption of risk defence
21 As to the defence of voluntary assumption of risk, Burt CJ in Jeffries v Fisher said (at 253):
"For the defence of volenti non fit injuria to succeed, however, not only must the injury to the gratuitous passenger be caused by improper driving caused by the driver's intoxicated condition, but in addition to that, and as a further step, it must be established that a gratuitous driver [sic: passenger] fully appreciated the risk and voluntarily accepted it. Of course in many cases that appreciation and acceptance can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient …"
22 In my opinion, the appellant's conduct imposed on the respondent the obligation to make a decision about whether he would assume the risk of staying in the vehicle and the appellant did not allow a reasonable time for the respondent to make that assessment.
23 In my opinion this defence should fail.
Contributory negligence
24 The appellant also complains that the deduction for contributory negligence should be "up to 100% where the Respondent … rode in the motor vehicle with the Appellant … who was clearly very drunk".
25 The no duty defence depends upon the knowledge and acceptance by the passenger that he or she should be driven by a drunken driver. That
(Page 9)
- requires an examination of the particular circumstances of the case: Joyce's case at 57; Cook v Cook (supra) and Gala v Preston (supra). I have already quoted Burt CJ's statement of what has to be shown to make out the voluntary assumption of risk defence. As with the no duty defence, it depends upon an examination of the circumstances and the conduct of the particular participants, not the conduct of a hypothetical participant.
26 On the other hand, the standard of care in contributory negligence depends upon foreseeability, not of the particular participants but of a reasonable person. See Commissioner of Railways v Ruprecht (1979) 142 CLR 563 per Mason J at 570.
27 More specifically, McHugh J in Joslyn v Berryman (supra) at [38] said:
"Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition - if there could be such a person - would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person - a sober person - would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication."
28 This explains why it is possible for a defendant to fail on the no duty defence and the voluntary assumption of risk defence and yet succeed in establishing that there was contributory negligence on the part of the passenger. This result can be seen in many cases. See Joslyn v Berryman (supra) [26] and the cases cited at footnote 39.
29 The finding that there was contributory negligence is not under challenge on this appeal. The only issue is the extent of the apportionment.
30 Although an appeal court will intervene to correct a trial Judge's assessment of the extent of contributory negligence where necessary (see Czatyrko v Edith Cowan University (2005) 214 ALR 349), it is still true that on appeal the appeal court is only justified in interfering if it is satisfied that the apportionment at trial is plainly wrong. In a passage from Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, cited by Hayne J in Joslyn at [157], the High Court said:
"A finding on a question of apportionment is a finding upon a 'question not of principle or of positive findings of fact or law,
(Page 10)
- but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds'; British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed."
31 The appellant in this case has done little more than urge the Court to arrive at higher figure by way of apportionment. No error has been pointed out in relation to the trial Judge's determination of 30 per cent against the respondent. All that the appellant has done is refer to the same considerations that were put to the trial Judge.
32 The decision in relation to an apportionment for contributory negligence is a decision made pursuant to s 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947. This authorises the Court to determine what is "just". It requires the Court to compare the culpability of the parties, ie the degree to which each departed from the standard of what is reasonable and the importance of the acts of the parties in causing the damage: Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 at 68 per Hayne J. This involves an examination of the whole conduct of each of the negligent parties. See Podrebersek (supra).
33 In my opinion, the culpability of the appellant far outweighed that of the respondent. He drove foolishly just before the accident despite pleas from the passengers to slow up and this was more important in the cause of the respondent's injury than the fact that the respondent rode in the car in circumstances where a sober person would not have done so. When viewed overall, the appellant's conduct in taking control of the vehicle over the protest of the respondent and against the wishes of Reid, is a significant factor against a heavier apportionment than 30 per cent.
34 In my opinion the appellant has not demonstrated that his Honour erred in not making an apportionment in excess of 30 per cent.
Ground 2(d) - Seatbelt
35 Ground 2(d) reads:
"2. The learned trial Judge erred in law and in fact in failing to find, alternatively should have found:
…
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- (d) that the Respondent (Plaintiff) was guilty of contributory negligence in failing to wear a properly fastened seatbelt, it being inherently improbable that the Respondent (Plaintiff) disconnected his seatbelt at the moment of apprehending the loss of control of the vehicle by the Appellant (Defendant); …"
36 The respondent said he put on his seatbelt at the beginning of the journey. This was not contradicted by any other testimony. His Honour made a finding that he was wearing it but that in the seconds prior to the accident in apprehension of the left side of the car coming into impact with a pole, the respondent unbuckled his seatbelt and threw himself to the right behind the driver's seat.
37 The appellant submits that it was inherently improbable that the respondent took his seatbelt off just before the impact. The appellant submits that because he was not wearing a seatbelt after the accident it should be inferred that he was not wearing it at any stage during the journey. The appellant points to the fact that the appellant was driving at about 70 kms per hour; that just before the intersection the lights turned red and the appellant changed gears and applied the brakes and that the earliest the respondent would have appreciated that the vehicle was at risk of hitting a traffic light was no earlier than 10 metres before the intersection. The appellant contends that the time-frame between the appellant's attempt to brake and the actual impact would have been "something like one or two seconds" or less. The appellant therefore contends that the trial Judge should have found that the respondent was not wearing a seatbelt.
38 The appellant acknowledges that due regard must be paid to the advantages enjoyed by a trial Judge in observing the demeanour of witnesses and listening to their evidence. The appellant contends however, that this is a case where the facts incontrovertibly established or made it "glaringly improbable" that the respondent was wearing a seatbelt at all.
39 In my opinion, having read the evidence of the respondent who steadfastly maintained that he was wearing his seatbelt and only released it as he realised that the car was to hit the pole, there is nothing in that evidence which should lead this Court to reach a different conclusion from the trial Judge. The points advanced by the appellant are no more
(Page 12)
- than points in favour of a finding which the appellant would have preferred. They do not compel a conclusion that the trial Judge erred.
40 In my opinion this ground should be dismissed.
Ground 2(e) and 3 - Releasing the seatbelt
41 Ground 2(e) and 3 read:
"2. …
(e) alternatively to (d), that the Respondent (Plaintiff) was guilty of contributory negligence in disconnecting his seatbelt when the Respondent (Plaintiff) knew or ought to have known, that in so doing he was exposing himself to a greater risk of injury in the event of a motor vehicle accident.
3. The learned trial Judge erred in fact in failing to find that the Respondent (Plaintiff) disconnected his seatbelt prior to any apprehension by the Respondent (Plaintiff) that the motor vehicle was going to strike a pole on the left hand side of the motor vehicle, and in so doing failed to take reasonable care for his own safety."
42 The appellant argues that if the respondent was wearing a seatbelt in the early part of the journey, then in the alternative he was guilty of contributory negligence in taking off his seatbelt just before the car collided with the pole. Opinion evidence was given by a doctor that had he been wearing a seatbelt, he would have suffered injuries of less significance. This evidence appears to have been accepted by the trial Judge.
43 His Honour referred to Fleming: "The Law of Torts", 9th Ed, at 319 where the author says:
"A certain latitude is allowed when 'in the agony of the moment' [a person] seeks to extricate himself from an emergency not created by his own antecedent negligence. … he will not be adjudged guilty of negligence merely because, as it turns out, he unwittingly took the wrong course."
- See also Abdallah v Newton (1998) 28 MVR 364.
(Page 13)
44 The appellant accepts that the statement in Fleming is a correct statement of the law, but submits that the emergency in this case, namely the respondent's position as a passenger in the vehicle, "was of the respondent's own making in that he had remained in the vehicle despite appreciating that the appellant would be driving it without a current licence and whilst drunk."
45 The issue in relation to these grounds is more confined than that submission suggests. This ground only arises if the trial Judge's finding that the respondent was wearing a seatbelt is undisturbed. The issue is whether a reasonable person would have acted as the respondent did; that is, to release the seatbelt out of fear that he would be injured by the car striking the pole at a point close to where the respondent was sitting.
46 In my opinion, his Honour was entitled to conclude that it was not unreasonable for the respondent to release the seatbelt in the "fleeting" moment just before impact, and that in consequence there was no contributory negligence.
47 The appellant contends that the respondent knew, or ought to have known, that he was exposing himself to greater risk of injury by releasing his seatbelt; but this contention is based on the opinion of a doctor who formed his opinion with hindsight, with plenty of time for reflection and with knowledge of injuries the respondent actually suffered in the accident. The respondent was not a doctor and had to make an urgent judgment in the crisis of the moment. The photographs which show damage to the car near to where he was sitting shows that his fear about what was likely to happen was well-founded. The fact that he misjudged the outcome and may have been less seriously injured if he had not released his seatbelt was a decision taken in the agony of the moment. See Abdallah v Newton (supra). These grounds of appeal should be dismissed.
48 The appellant abandoned his fourth ground of appeal.
49 The result is that the appeal should be dismissed.
50 MURRAY AJA: In this case the respondent sued for damages for personal injuries suffered on 22 August 2002, a few days prior to his 21st birthday. He was injured in a motor vehicle accident. He was a passenger in the backseat of a car being driven by the appellant. There was another passenger in the front of the car, a young man named Joshua Reid. Both the appellant and the respondent were intoxicated, but Reid was sober.
(Page 14)
51 The accident happened at an intersection controlled by traffic lights. As the appellant approached the intersection the lights turned amber. The respondent told him to slow down, but, at least initially, he attempted to run the lights. However, within a short distance before entering the intersection, the appellant obviously changed his mind. He changed to a lower gear and braked heavily. He lost control of the vehicle and started to slide. The collision occurred when the left side of the vehicle, about half way along its length, struck the pole of one of the traffic lights. The force must have been considerable because the damage caused by the impact was very severe.
52 The trial Judge accepted the respondent's evidence that he saw the collision approaching as the vehicle slid to its left. His Honour found that the respondent unbuckled his seatbelt and endeavoured to get across to the right side of the car. Medical evidence at the trial suggested that that was an error of judgment, which, on the collision occurring, caused the respondent to suffer injuries which, had he remained buckled into the seatbelt, he may not have sustained, or at least may not have sustained to the same degree of seriousness.
53 The appellant accepts that the respondent was not wearing the seatbelt at the time of the accident, but he complains that the trial Judge erred in failing to find that the respondent was not wearing his seatbelt at all, or that he had unbuckled it earlier than he said. The appellant submits that it is inherently improbable that the respondent could have divested himself of the seatbelt when he said. Attention is focused on the evidence of the respondent that the vehicle was travelling at about 70 kph, that the lights turned red about 10 metres before the vehicle entered the intersection, and it was then that the appellant changed down and applied the brakes.
54 Before that happened, the respondent said, the appellant had been driving in an acceptable manner and he had no perception of any risk of an accident. His evidence was that the whole thing took one or two seconds, but for the appellant it is said that to travel 10 metres at 70 kph would only take 1/2 a second, and so it is put that the trial Judge misused his advantage as the finder of the facts and this Court should overturn his finding on this issue: Fox v Percy (2003) 214 CLR 118, 128 [29].
55 The appellant submits that the finding of the Court ought to be that the respondent was contributorily negligent, simply because he was not wearing a seatbelt. On the other hand, if that proposition is not accepted,
(Page 15)
- it is submitted that it was an act of contributory negligence for the respondent to disconnect the seatbelt when he realised that there was going to be an accident, because, it is submitted, he ought to have known that he was thereby exposing himself to a greater risk of injury or a risk of more severe injury.
56 Neither proposition appealed to the trial Judge, who took the view that it was appropriate to allow some latitude when, in the agony of the moment, the plaintiff unwittingly took the wrong course in seeking to extricate himself from a position of danger, which he had not created by his own antecedent negligence: Abdallah v Newton (1998) 28 MVR 364.
57 On this issue, I agree with Pullin JA. I can see no reason to suppose that the finding of fact by the trial Judge is not supportable and I do not see any reason to depart from the conclusion of the trial Judge that, in the circumstances, the action of the respondent in undoing the seatbelt did not represent a failure to take reasonable care for his own safety.
58 The only evidence as to when, if at all, the respondent buckled himself into the seatbelt was his evidence and there was no basis upon which it might not be accepted. There is no definitive evidence that the respondent divested himself of the belt at some earlier stage in the journey. No doubt it is right that events happened quickly from the time when the lights turned red until the point of impact, but at least there was time for the driver, the appellant, to both change the gears down and to apply the brakes. No doubt that reduced the speed of the vehicle, as would its slide to the left. There is no reason to suppose that if the respondent reacted quickly, he would not have time to unbuckle the belt, an action which I think it must be accepted was, whether or not a misjudgement, a desperate attempt to remove himself from a position adjacent to the likely point of impact with the pole.
59 It is accepted that at trial the appellant ran three defences. The first was that there was no breach by him of the duty of care he owed as the driver of the vehicle, to the respondent, his passenger. The appellant's pleading in that regard was simply a denial of negligence, which I would not have thought was a sufficient pleading of the defence that the appellant was not in breach of the duty of care he owed because the respondent well knew that the appellant was quite gravely intoxicated. It matters not however, because the issue was raised at the trial and the trial Judge found that the defence was not made out. The appellant complains of error in that conclusion, although the relevant ground, ground 2(b), puts it that the trial Judge erred in failing to find that the appellant "owed no
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- duty of care to the respondent who agreed to ride in the motor vehicle driven by the appellant, who was clearly very drunk".
60 There was a more fulsome pleading of the defence of volenti non fit injuria. It was pleaded that if the appellant was negligent, he was not liable to the respondent for any injury, loss or damage caused by that negligence because the respondent voluntarily assumed the risk of injury by travelling in the car. It was pleaded that the respondent knew before agreeing to travel in the vehicle, that the appellant had been drinking alcohol and did not hold a driver's licence. Nonetheless, it was pleaded that he failed to leave the vehicle before the appellant commenced to drive, when the respondent had the opportunity to do so. This is certainly a recognisable plea of implied voluntary assumption of risk.
61 Finally, there was the alternative plea that the respondent was contributorily negligent and his damages should therefore be reduced. The trial Judge agreed, having rejected the defences of no breach of duty and voluntary assumption of risk. His Honour apportioned blame as between the appellant and the respondent in the ratio 2/3:1/3.
62 Again, the appeal involves the contention that the trial Judge erred in rejecting the defence of voluntary assumption of risk, and alternatively in his apportionment on the ground of contributory negligence, which, in the circumstances, it is submitted, should have been "up to 100%", on the ground that the respondent rode in the motor vehicle with the appellant "who was clearly very drunk".
63 The facts giving rise to these issues may, in the light of my view about the finding of the trial Judge in respect of the seatbelt originally worn by the respondent, be taken to be those found by the trial Judge. On that basis, it is noteworthy that the motor vehicle had originally been owned by the appellant, but before the incident in question, it had been bought by Reid. On the day in question, Reid drove the car to the appellant's home, and the appellant commenced to tune the vehicle. The respondent was also there. While the work was being done the appellant and respondent were drinking beer. They continued to do so during the afternoon and both consumed a considerable quantity. That went on into the evening when they were at a hairdressing salon. Reid had permitted the appellant to drive part of the way there. It was apparent that the appellant was under the influence of alcohol, but he did not appear to be drunk and Reid saw no problem in allowing him to take the wheel.
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64 When it came time to return to their homes, Reid got behind the wheel and the respondent got into the back seat of the car. The appellant was saying goodbye to some other people. When he came to the car he went to the driver's window and asked Reid to allow him to drive home. Reid remonstrated with him because he wanted to drive. It was his car. In addition the respondent told Reid that the appellant had his driver's licence suspended for the non-payment of traffic fines and that he was too drunk to drive. However the appellant insisted on driving. He insisted that he was able to drive and Reid gave in and moved over to the passenger seat.
65 The respondent did not leave the vehicle. When asked why, he said that he had had too much to drink, he was tired and he "just couldn’t be bothered moving". The appellant showed no incapacity to drive during the course of the journey, and nothing untoward occurred until they approached the intersection where the accident happened.
66 It is evident that in the judgement of his Honour the trial Judge, the 1/3 apportionment of liability against the respondent was grounded solely in his voluntary acceptance of the ride in the car driven by the appellant, whose casual act of negligence at the intersection was the primary cause of the accident and injuries sustained by the respondent. The trial Judge found that the appellant lost control of the vehicle when, by reason of his intoxication, he misjudged his speed and his approach to the intersection when the lights were about to change to red.
67 I commence by observing that since contributory negligence was, by statute, placed in the category of a qualified defence, one which does not defeat the plaintiff's claim, as was formerly the case, but one which permits the court to apportion liability according to its assessment of the culpability or degree of negligence applicable to the plaintiff and defendant respectively, the notions of the complete defence arising out of the no breach of duty concept and voluntary assumption of risk are less attractive conceptually. For the generality of cases it seems to be socially appropriate to allow the Court to make an evaluation of responsibility for harm for which an action is brought. Particularly, it seems to me, must that be so in cases such as those arising out of the use of a motor vehicle, where compulsory third party insurance is universal.
68 Otherwise, it seems, the Court will respond to the social utility of the plaintiff's conduct. The Court will not defeat a plaintiff's claim on the ground of voluntary assumption of risk where the plaintiff is a rescuer, a good Samaritan, as the cases following Haynes v Harwood [1935] 1 KB
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- 146 demonstrate. On the other hand, it is well recognised that a plaintiff who consciously engages in a dangerous sporting activity, will not be able to recover if injured as a result of encountering a danger which is inherent in the sporting activity. Particularly is there a truncation of the duty to warn against obvious risks: Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, but cf the dissenting judgment of Kirby J in that case at 499 [124] – [125]. There is now a legislative attempt to deal in part with such matters in the Civil Liability Act 2002 (WA) Pt 1A, Div 4 and Div 6.
69 This is not the place to discuss such matters. I mention them only because, for the appellant, it was put to us that this case provided an important test of the present availability of the defences of no breach of duty and voluntary assumption of risk, from the point of view of the appellant and the insurer standing behind him. It seems to me, however, that when the nature of these defences is properly understood, this case provides no occasion for the application of either of them.
70 The defence of no breach of duty, as a distinct alternative to a plea of the implied voluntary assumption of risk, appears, in this country, to have its genesis in the judgments of the High Court in Insurance Commissioner v Joyce (1948) 77 CLR 39 and Roggenkamp v Bennett (1950) 80 CLR 292, cases which originated in Queensland at a time when to establish contributory negligence on the part of the plaintiff was a complete defence.
71 That is not to say that the defence can now be regarded as a dead letter in view of the universal statutory provision for the apportionment of liability on the ground of contributory negligence. Later High Court decisions in Cook v Cook (1986) 162 CLR 376 and Gala v Preston (1991) 172 CLR 243 have confirmed the availability of this defence. Before the latter two cases were decided, the decision of this Court in Jeffries v Fisher [1985] WAR 250 confirmed the availability of the no breach of duty defence as a defence distinct from that of voluntary assumption of risk. Both defences were recognised by the Court in the context of the provision for apportionment of liability upon the ground of contributory negligence provided by the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 4(1).
72 More recently, in Joslyn v Berryman (2003) 214 CLR 552, McHugh J at 563 [29] said:
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- "The plea of no breach of duty – perhaps even a plea of no duty in an extreme case – is still open in the case of a passenger who accepts a lift with a driver known to the passenger to be seriously intoxicated."
73 His Honour referred to the cases of Cook and Gala and, at 564 [30], said that while those cases stood, they were authorities for the proposition that:
"…in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger. In some cases, knowledge by a passenger that the driver's ability to drive is impaired by alcohol may transform the relationship between them into such a category."
74 Those remarks were strictly obiter because Joslyn solely involved consideration of the issue of contributory negligence, in a case where the passenger was injured when both driver and passenger were intoxicated. The case is authority for the proposition that where the plaintiff was, or reasonably ought to have been, aware of the impairment of the driver's capacity to drive by alcohol, having regard to all the relevant preceding facts and circumstances, the passenger might be guilty of contributory negligence. The no breach of duty defence was most recently discussed by this Court in Howard v Hamilton (1996) 16 WAR 292, particularly by Rowland J at 296 - 297.
75 This is not a case which is seriously suggested to be of that extreme variety where it may be said that the circumstances are such that the existence of a duty of care owed by the driver to the gratuitous passenger has been entirely abrogated. Indeed for myself, I find it difficult to imagine the factual circumstances which might properly lead to that conclusion. The central concept of the no breach of duty defence is that knowledge, actually possessed by the passenger, of circumstances which limit to some degree the capacity of the driver to discharge the duty of care which drivers ordinarily owe to their passengers, might lead the court to conclude that the duty of care owed was so attenuated that it was not breached.
76 In this regard, the court is not concerned with knowledge that there may occur some casual act of negligence or misjudgement. It is concerned with knowledge of incapacity, often because of the degree of intoxication exhibited by the driver, or by reason of known incompetence
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- to drive because the driver does not know how to do so, or is still a learner, as in the case of Cook. In those cases, the court's judgment as to whether or not the defendant has been negligent, whether or not the plaintiff was injured as a result of the defendant's breach of a duty of care owed to the plaintiff, will depend on the extent to which the court is prepared to limit the rigor of the duty owed by the defendant to the plaintiff, in light of the plaintiff's proven knowledge of the defendant's limited capacity to exercise due care.
77 In my opinion, the evidence in this case did not even approach a no breach of duty situation by any ordinary standard. The appellant's misjudgement and the driving fault displayed on his approach to the intersection where the accident occurred, were properly to be characterised as negligent. While the respondent knew that the appellant was intoxicated, and quite substantially so, there was nothing to suggest that he knew that the level of intoxication was such as to be translated into a reduced capacity to properly control and manage the car, so that the way in which the accident was caused reflected that fact. The evidence of both the respondent and Reid was that during the previous part of the journey nothing untoward occurred to demonstrate any incapacity to properly control the motor vehicle. In addition, the licence suspension was irrelevant in this regard, being for the non-payment of fines.
78 In Howard, after considering the relevant authorities, to which I have referred above, and including the then recently decided case of McPherson v Whitfield [1996] 1 Qd R 474, at 308 I said:
"In the context of this case there are a number of points which may be made uncontroversially about the application of the doctrine –
(1) The assumption of the risk must occur before, but continue to be operative at, the time when the respondent would otherwise be held liable in damages to the appellant by reason of his breach by his negligence of the duty of care owed by him as driver of the motor vehicle to the appellant as a passenger therein. If there was an assumption of risk in this case it probably occurred at the time the respondent commenced driving with the appellant as a passenger in the vehicle.
(2) Because it is the legal risk of future negligence which is impliedly assumed by the appellant it follows, as the
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- respondent pleaded in this case, that it must be established that the respondent was generally incapable of discharging the relevant duty of care owed to the appellant, not merely that he might in all probability commit some casual act of negligence.
- (3) The appellant must be established to have voluntarily assumed the risk. In other words, he must be taken to have consciously or knowingly done so. This is usually established in the case of implied assumption of risk by showing that the objective facts known to the plaintiff must have given him a full appreciation of the risk inherent therein, being the risk which actually eventuated so as to cause the injury for which the plaintiff sues. The plea could not be made good if the appellant in this case was, himself, too drunk to appreciate the risk involved in his encouraging the respondent to drive and accepting a lift in the vehicle when he did so.
(4) The respondent must establish that the appellant assumed the legal risk of injury, not only consciously or knowingly, but also voluntarily in the exercise of a free choice without any constraint operating at the time. It is sometimes put that the plaintiff must be established to be not only sciens but also volens.
(5) If those conditions are not made out so as to effect a waiver of the liability which the respondent would otherwise bear towards the appellant, it will be appropriate to consider to what extent the damages which are to be awarded to the appellant are to be reduced by reason of his contributory negligence, the extent to which he has contributed to the injury he suffered by reason of his lack of care for his own safety, having regard to the circumstances in which he became and continued to be a passenger in the vehicle."
79 By majority in Howard,the Court held that the trial Judge had been wrong to dismiss the appellant's action on the basis that the respondent had made out the defence of volenti non fit injuria,and this Court apportioned liability for contributory negligence equally between appellant and respondent. I must say that factually, Howard seems to me to be a stronger case for the defence to be made out, than does this.
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80 In my opinion, there was no evidence capable of establishing that the proper conclusion by the trial Judge was that the respondent had assumed the physical risk of injury occurring in the way that it did, let alone that he had effectively waived the capacity to recover damages for any negligently caused injury he sustained. In other words, there was nothing to indicate that the respondent should be taken to have assumed the legal risk of injury; that he should be taken to have agreed, if he was injured, to bear the liability entirely himself.
81 My reasons for so holding would be the same as those which have driven me to the conclusion that this was not a no breach of duty case. The respondent might be taken to have appreciated that the appellant had had a lot to drink over the day and that he was intoxicated. He said so at the commencement of the journey. But that is not to say that by remaining in the vehicle, he was impliedly accepting that the risk of any collision, as a result of alcohol caused misjudgement of driving conditions, would be borne by him. The most that could be said was that the respondent might be taken to have known that the appellant was sufficiently intoxicated that a situation might arise while he was driving with which he would not adequately cope; ie that he might in the course of the journey commit some casual act of negligence. That is clearly insufficient.
82 As to the question of contributory negligence, putting to one side the question of the seatbelt, with which I have already dealt, it is said to lie in the respondent remaining in the vehicle and not choosing to leave it, despite his knowledge of the appellant's intoxication. Given that there is nothing before the Court to suggest that that was not properly to be regarded as a failure by the respondent to take reasonable care for his own safety, I think it remains the case that the appellant, as the driver, had to bear substantial responsibility for the injuries suffered by the respondent. I respectfully agree with Pullin JA that the culpability of the appellant far outweighed that of the respondent. I agree that there is no basis upon which this Court might conclude that the judgment of the trial Judge upon the issue of contributory negligence has so far miscarried as to require our intervention.
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