Gusakoski v Avram
[2004] WADC 205
•15 OCTOBER 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GUSAKOSKI -v- AVRAM [2004] WADC 205
CORAM: EATON DCJ
HEARD: 22 JULY 2004
DELIVERED : 15 OCTOBER 2004
FILE NO/S: CIV 454 of 2003
BETWEEN: TONY GUSAKOSKI
Plaintiff
AND
MARIO AVRAM
Defendant
Catchwords:
Motor vehicle accident - Inebriated driver - Voluntary assumption of risk - Apportionment of liability
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
Result:
Plaintiff entitled to recover two-thirds of his loss and damages
Representation:
Counsel:
Plaintiff: Mr V V Ozich
Defendant: Mr M A McAuliffe
Solicitors:
Plaintiff: V Ozich & Co
Defendant: Dibbs Barker Gosling
Case(s) referred to in judgment(s):
Insurance Commissioner v Joyce (1948) 77 CLR 39
Joslyn v Berryman, Wentworth Shire Council v Berryman [2003] HCA 34; (2003) 77 ALJR 1233
Case(s) also cited:
Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 239
Dann v Hamilton [1939] 1 KB 509; [1939] 1 All ER 59
Howard v Hamilton (1996) 24 MVR 76
Jeffries v Fisher [1985] WAR 250
Joslyn v Berryman; Wentworth Shire Council v Berryman [2004] NSWCA 121
Miller v State Government Insurance Commission (1993) 9 SR (WA) 81
O'Shea v Permanent Trustee Co (NSW) [1971] Qd R 1
Roggenkamp v Bennett (1950) 80 CLR 292
Williams v Government Insurance Office of New South Wales (1995) 21 MVR 148
EATON DCJ: By writ of summons filed on 4 March 2003 the plaintiff sued the defendant for damages arising from injuries he sustained in a motor vehicle accident on 22 August 2002 near the junction of Wanneroo Road and London Street, Joondanna, alleging, in an indorsement of claim, that the accident was caused by the negligent driving of the defendant. By his statement of claim the plaintiff asserted that he was, at the material time, a passenger in a motor vehicle being driven by the defendant. He said that the vehicle was involved in a motor vehicle accident at about 9.15 pm on 22 August 2002 and that the accident was caused solely by the negligent driving of the defendant in failing to keep any or any proper lookout, driving without due care and attention, at an excessive speed in all the circumstances and under the influence of alcohol. The plaintiff then went on to plead his injuries, his medical treatment, his residual disabilities and particulars of the loss suffered by him.
By an amended defence the defendant denied that the defendant was negligent as alleged or at all and asserted further that if the defendant was negligent the defendant was not liable to the plaintiff for any injury, loss or damage caused by that negligence because the plaintiff had voluntarily assumed the risk of injury by travelling in the vehicle being driven by the defendant. The defendant pleaded that in doing so the plaintiff had waived any claim for injury, loss or damage and that, as a consequence, the defendant owed no duty to the plaintiff. In particularising the assertion that the plaintiff had voluntarily assumed the risk of an accident and injury the defendant asserted that the plaintiff, before agreeing to travel in the vehicle, was aware that the defendant had been drinking alcohol and that he did not hold a then current valid driver's licence and failed to exit the vehicle before the defendant commenced driving when the opportunity to do so presented itself.
The defendant further pleaded that if the plaintiff suffered injury, loss or damage as alleged in the statement of claim it was substantially contributed to by the plaintiff's failure to wear a properly fastened seat belt at the time of the accident, by the plaintiff's lack of a valid driver's licence and the plaintiff's history of problems with alcohol.
The matter for determination at trial was the question of liability. The plaintiff said that he was born on 26 August 1981. It follows that on 22 August 2002 he was a few days short of his 21st birthday. It is clear that he and the defendant had known each other for many years, were close friends and had contact on an almost daily basis. He said that at about 1.00 pm on 22 August 2002 he and his brother went to the defendant's home in Greenwood. The defendant was servicing a Mazda 929 Sedan ("the vehicle") owned by one Joshua James Reid. The plaintiff said that he began drinking at the defendant's place at about 2.00 or 3.00 o'clock in the afternoon.
Joshua James Reid, was called by the plaintiff. He had purchased the vehicle from the defendant about two or three months prior to the motor vehicle accident. They lived not far from one another. He confirmed that at around lunch time on the day in question the defendant was tuning up the vehicle. He had driven the vehicle to the defendant's place that day and stayed while the work was being done. He thought that the plaintiff, who he knew, was already at the defendant's place when he arrived just after 12.00 noon. He says that after about 2 hours he drove the plaintiff, the plaintiff's brother and the defendant in the vehicle to the plaintiff's brother's house where he dropped them off. Later, as prearranged, he picked them up again at about 7.00 pm.
The defendant's recollection was that he began drinking when the plaintiff arrived which was just after midday. It appears that they began drinking at about the same time. He said that between them they drank 24 stubbies of Corona beer, being 12 stubbies each over the period from the arrival of the plaintiff to the time of the arrival of Joshua Reid which, according to the defendant, was at about 3.30 or 4.00 pm.
The plaintiff said that he and the defendant began drinking at about 3.00 pm. The beer, he said, had been purchased by he and Joshua Reid. The latter drove. They purchased Corona beer but he could not say how many. He then said that there were two six packs purchased rather than a carton. He admitted in cross‑examination that the drinking continued until about 4.00 pm and that he and the defendant consumed six stubbies each.
The plaintiff said that Joshua Reid drove himself, his brother and the defendant to his brother's place in Girrawheen in the vehicle. They arrived at about 4.15 pm. He said that while at his brother's place they drank Victoria Bitter stubbies. He left with his sister‑in‑law who drove him to collect some money owed to him from a job, returning to his brother's place at about 5.00 pm. He thought that he probably drank two or three stubbies of Victoria Bitter there. Shortly after 7.00 pm, pursuant to the arrangement made with Joshua Reid, he and the defendant were collected by Joshua Reid and driven to a hairdressing salon so that both he and the defendant could have a hair cut. He said that on the journey there Joshua Reid drove with the defendant sitting in the front passenger seat and he sitting in the back seat. They stayed at the hairdressers until 9.00 pm when it closed. According to the plaintiff, while at the hairdressers, they were drinking Corona stubbies. He said that he and Joshua Reid went to get a further six pack of Corona stubbies which was shared with the defendant and the staff of the hairdressing salon. He said he had one at the hairdresser's and was holding his last stubby when he got into the vehicle to leave.
In cross‑examination the plaintiff said that he had consumed six Corona stubbies at the defendant's place, four Victoria Bitter stubbies at his brother's place, four Corona stubbies at the hairdresser's and had a fifth Corona stubby in his hand when they left in the vehicle. Corona beer and Victoria Bitter beer are full strength beers.
The defendant said that he had consumed 12 stubbies of Corona beer before leaving his place, six stubbies or cans of Victoria Bitter before leaving the plaintiff's brother's place and a further three stubbies of Corona at the hairdresser's.
Joshua Reid did not drink on the day in question. He could not remember whether there was any alcohol being consumed by the plaintiff or the defendant at the defendant's place. He recalled driving both the plaintiff and the defendant to the hairdressing salon at Mount Hawthorn. He confirmed that on the way there the defendant sat next to him in the front and the plaintiff sat behind. During the journey the defendant asked to drive. He said that he knew that the defendant had been drinking but didn't know how much. He said that it was apparent that the defendant was under the influence of alcohol but did not appear to be drunk. He saw no problem with the defendant taking the wheel of the vehicle.
Joshua Reid said he had a pretty good recollection of their departure from the hairdressing salon. He got into the vehicle and started the engine. The defendant was saying goodbye to his friend who was in the car in front. The plaintiff was in the back seat. The defendant came up to the driver's side window and asked if he could drive home. Joshua Reid enquired as to whether he was "okay to drive". The defendant replied that he was. When asked as to the defendant's manner Joshua Reid said that the defendant "wouldn't take "no" for an answer". The vehicle was his. He wanted to drive home. He argued with the defendant. The defendant persisted with the argument continuing for about five or ten minutes. Joshua Reid gave in.
When the defendant took the wheel Joshua Reid was seated in the front passenger seat with the plaintiff still in the rear seat. As the vehicle approached a set of traffic lights in Wanneroo Road he recalls telling the defendant to stop. He said:
"I remember the lights turning red and he hadn't applied the stop yet and that's when I told him to. I told him to start slowing down, stop, not to go through the red lights. I think he just slammed on the brakes or something…it just spun on the dash sideways and just slid into the pole."
It is clear from several photos taken of the vehicle after the accident (exhibit 1) that the point of collision was on the front passenger side door and that the collision was one involving considerable force. Joshua Reid said that he suffered a broken femur.
Having left the hairdressing salon it seems that the plaintiff climbed into the rear seat of the vehicle. He said that the defendant came to the driver's side front window and said to Joshua Reid "give me the fucking keys". He said that he told Joshua Reid that the defendant was under fines suspension and that he shouldn't drive given the state that he was in. The defendant prevailed and got into the driver's seat. When asked why it was that he stayed in the vehicle given his knowledge of the defendant he said: "I would have but I was just – because I had too much to drink that day and I was tired from work in the morning and I just couldn't be bothered moving." He said that he wasn't fussed about the defendant's manner of driving and that he was driving "pretty good". As they approached the intersection of Wanneroo Road and London Street the plaintiff said that there was an orange light and that he told the defendant to "slow down" to which the defendant replied "don't worry, we'll make it". The plaintiff said that the lights turned red, that the defendant started changing down the gears, braked and the car skidded into a traffic light. When asked: "Did you do anything while this was happening?" he replied: "Yes. I unclipped my seat belt." When asked why he did that he replied that he didn't want to get the full impact of the traffic light which hit the centre of the car. The impact was on the side that he was sitting on. He admitted that he was drunk and that he sustained a fractured neck in the accident.
In cross‑examination the plaintiff said that he was seated on the left hand side of the vehicle in the rear passenger seat and that when he disconnected his seat belt he "ducked over to behind the driver's seat". It was suggested to him that, given the time frame and that he was tired and drunk, that was not what happened. He replied that it did happen and that he was wearing a seat belt. When asked how he knew there would be an impact he explained that he saw the pole. When asked how far away he was when he saw it he replied "probably about two metres". Counsel then asked: "When the pole was two metres away you realised you were in danger and went to disconnect your seat belt?" He replied: "No. I disconnected the belt when the car started skidding and just ducked."
The plaintiff had made a statement in writing to an insurance assessor on 23 October 2002. That statement was referred to in the cross‑examination of the plaintiff and was ultimately tendered into evidence by consent, becoming exhibit 2. In the statement the plaintiff said that at 1.00 o'clock on 22 August 2002 he had been dropped off at the defendant's place at Greenwood. Joshua Reid was there. He and the plaintiff talked while the defendant serviced the vehicle. They left at about 4.30 pm, he and the defendant having consumed six stubbies of Corona beer each during the course of the afternoon to that point. They went firstly to his home where he got some money, then to a bottle shop where they purchased a further six pack of Corona beer and finally to his brother's place in Girrawheen. Joshua Reid drove the plaintiff and the defendant there in the vehicle. Joshua Reid returned with the vehicle between 7.30 pm and 8.00 pm. In the intervening period the plaintiff and the defendant had consumed another two beers each. At about 8.00 pm Joshua drove the plaintiff and the defendant in the vehicle to a hairdressing salon in Scarborough Beach Road, Mount Hawthorn, arriving at 8.20 pm. While he waited to get a haircut Joshua and the defendant went to a bottle shop to purchase a further six pack of Corona beer. He was having his hair cut when they returned. While at the hairdressers he would have consumed another one or two beers. At about 9.00 pm they left the hairdressers in the vehicle. Initially Joshua was in the driver's seat with the plaintiff in the left rear seat. As they were about to leave the defendant said to Joshua "give me the fucking keys". Joshua did so. The plaintiff says that he told the defendant not to drive as he had been drinking and on fines suspension and that the defendant said in reply: "I know but who cares". The vehicle departed with the defendant at the wheel. The plaintiff said that at about 9.10 pm the vehicle was stationary at the traffic lights at the intersection of Charles Street and Green Street. When the lights turned green the defendant "took off a bit crazy, screeching the tyres". As they approached the next set of traffic lights at the junction with London Street the vehicle was travelling at approximately 70 kilometres per hour when he saw the lights turn amber. The plaintiff said in the statement that he said to the defendant "Mario slow down" to which the defendant replied "we'll still make it". The defendant neither braked nor accelerated. According to the statement when the vehicle was approximately 10 metres south of the intersection the traffic lights turned red and the defendant immediately dropped back the gears and hit the brakes. The left hand side of the vehicle skidded out striking a traffic light. There was a severe impact. In the statement the plaintiff said that his next recollection was waking up in hospital getting stitches in his head. He said that both Joshua Reid and he had been wearing seat belts and that he had unclipped his seat belt just prior to the impact to get over to the right hand side behind the driver's seat. He said that he did so because he could see that the impact was going to be on the left hand side of the vehicle.
The only other person to give evidence was John Milton Saunders, a medical practitioner called by the defendant. He had prepared a report dated 26 August 2003 which became exhibit 3. Dr Saunders reviewed the plaintiff, at the request of the defendant's solicitors, about one year after the motor vehicle accident. It appears that Dr Saunders was told that upon arrival at Royal Perth Hospital Emergency department on examination the plaintiff was found to have a cut on the right forehead just above the hairline and a chipped left upper second incisor. X‑rays revealed an undisplaced fracture through the right pedicle of the fourth cervical vertebrae. That was confirmed by a CT scan.
In his report Dr Saunders observed that if the plaintiff had been restrained by a seat belt at the time of the accident he, that is Dr Saunders, would have some difficulty in explaining how he suffered the injuries that he did. That conclusion is not particularly helpful as the evidence of the plaintiff was that he had been wearing a seat belt which he unbuckled in the seconds prior to the accident. Dr Saunders expressed the opinion that if the plaintiff had been restrained in a seat belt he would have suffered injuries of less significance. He would have expected that the seat belt would have adequately restrained him from hitting his head. He assumed that it was a blow to the head which was a significant factor in the neck injury.
When he gave evidence his report was tendered. He said that the fracture of the right pedicle of the neck would indicate a blow on that side.
Counsel for the plaintiff, in cross‑examination, put to Dr Saunders the plaintiff's account to the effect that as the vehicle was sliding towards the steel pole he unhitched the seat belt in an effort to avoid injury. Dr Saunders replied:
"I don't think he avoided injury; more likely to have increased his injury if he got his seat belt undone. He is going to be tossed around I mean, you have got a high impact."
He said that regardless of the point of impact or the nature of the impact it would be safer to be restrained by a seat belt, but it was not always the case.
In his report Dr Saunders said that, as at 26 August 2003, the plaintiff had suffered a well heeled fracture of the neck and that, in the immediate future he should make a full and complete recovery. He thought there was the probability of degenerative change in the future.
I conclude that the motor vehicle accident resulted from the negligence of the defendant. He was clearly very drunk, was driving in excess of the speed limit as he approached the intersection where the accident occurred and because of the effects of alcohol misjudged his ability to drive the vehicle through the traffic lights before they turned red resulting in a belated attempt to bring the car to a halt by braking and changing down through the gears during which he lost control of the vehicle. The photographs (exhibit 1) of the damage to the vehicle are stark testimony to the severity of the impact. Having regard to the point of impact it does appear as though Joshua Reid was indeed fortunate to only suffer a broken femur. Joshua Reid agreed that, as soon as the lights turned red he told the defendant to stop and that there was a momentary delay between his comment and the defendant's reaction by braking and changing gears. He said that the defendant's reaction was about 10‑15 metres before the intersection. The vehicle slid sideways into the intersection.
My impression of the witnesses was that the defendant tended to exaggerate the amount that he had had to drink. Given that Joshua Reid had not consumed alcohol on the day in question his account of what happened would be likely to be more reliable than those of the others. The plaintiff's evidence was generally consistent with the statement that he gave a matter of a few months after the accident. I accept his evidence as to the amount that he and the defendant drank on the day. Although he might have a motive for claiming that he was wearing a seat belt which he unbuckled immediately prior to the accident, apprehending a collision on the left hand side of the vehicle, I am inclined to accept that he did so notwithstanding that he was tired and drunk. It appears that there would have been time as the vehicle slid sideways through the intersection and that he may well have apprehended that his position, strapped into the left hand rear passenger seat, was likely to be more dangerous. I accept Dr Saunders' evidence to the effect that the fracture of the right pedicle was consistent with a forceful blow on the right hand side of the body. In my assessment Dr Saunders' evidence does not serve to contradict the plaintiff's account of what he did. Accepting, as I do, the plaintiff's account of what he did in terms of unbuckling his seat belt, the questions to be decided are whether, first, by reason of his continued presence in the vehicle once he knew that the defendant would be driving means as a matter of law that there was no duty or breach of it or that he voluntarily assumed the risk of the accident and the injuries that he subsequently suffered and, secondly, whether his actions in unbuckling his seat belt and diving to the right amounted to contributory negligence. As to the first, if I am not satisfied that the claim is defeated by those pleas or any of them I should consider the extent to which the plaintiff, in travelling in a vehicle driven by the defendant having regard to the plaintiff's knowledge of the defendant's state at the time, was guilty of contributory negligence and if he was, the extent of that negligence.
Counsel for the defendant put to me by way of an opening submission that in the circumstances of this case the defendant owed no duty to the plaintiff. He referred, in support of that proposition, to Joslyn v Berryman, Wentworth Shire Council v Berryman [2003] HCA 34; (2003) 77 ALJR 1233. In that case McHugh J traced the development of the common law rules of contributory negligence. He observed that, at common law, the plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed. He said, in principle, any fact or circumstance is relevant in determining contributory negligence if it proves, or assists in proving, a reasonably foreseeable risk of injury to the plaintiff in engaging in the conduct that gave rise to the injury suffered.
Referring to Insurance Commissioner v Joyce (1948) 77 CLR 39 his Honour noted that Latham CJ and Dixon J both held that the passenger's entitlement to sue could be defeated on any one of three grounds: no breach of duty, volenti non fit injuria and contributory negligence. Dixon J held in that case that the pleas of no breach of duty and volenti non fit injuria both required "some degree of actual knowledge on the part of the passenger of the alcoholic conditions he is accepting".
McHugh J then went on to say:
"What then of the issue of no breach of duty in cases where the passenger knows that the driver's ability is impaired by alcohol and suffers injury as a result of that impairment? Has it survived the judicial and legislative demise of the doctrine of volenti? ... The answer must be: 'Yes'. The plea of no breach of duty – perhaps even a plea of no duty in an extreme case – is still open in the cases of a passenger who accepts a lift with a driver known to the passenger to be seriously intoxicated."
In Joslyn v Berryman Kirby J embarked upon a similar survey of the law relating to contributory negligence. He also referred to Insurance Commissioner v Joyce and said:
"Like the present case, that was one in which, after a motor vehicle accident had occurred, objective evidence demonstrated that the driver had been affected by a consumption of alcoholic liquor. The question arose as to whether the claim for damages of the passenger, who had been sitting beside the driver, was defeated in consequence. Attention was given to three legal bases on which such a case might fail:
(1)that no duty of care was owed to a passenger where a driver was known to be intoxicated;
(2)that the defence provided by the voluntary assumption of risk applied in such circumstances; and
(3)that the defence of contributory negligence (which at common law was a complete answer to the plaintiff's claim) forbade recovery."
Kirby J noted that subsequent to Insurance Commissioner v Joyce two approaches had emerged in the decisions of Australian courts relevant to the defence of contributory negligence in circumstances where the defence is raised against the claim of a passenger who agrees to travel with a driver who, after an accident, is shown objectively to have been intoxicated. He went on to say that it was the approach that gives effect to the purposes of apportionment legislation that is to be favoured, noting that the High Court had a responsibility to make that clear. He said:
"Of the judicial approaches discussed, the one that takes the broader focus of considering the entire course of conduct by the intoxicated passenger is preferable to that which narrows the lens to focus exclusively on the events immediately preceding the accident."
Professor J G Fleming in his work "The Law of Torts" 9th ed at p 340 under the heading of "Volenti and the duty of care" had the following to say:
"With the defence of volenti thus in retreat, can it's fortunes be restored by presenting it in the guise of diminished 'duty'? The doctrinal kinship between the two concepts has already been noted: for, if the plaintiff has indeed voluntarily assumed the risk, a common explanation is to say that he has thereby absolved the defendant from the ordinary duty of care due to him. In short, the defendant owes him no duty, or only a duty of lesser care."
He went on to explain that in Australia a practice emerged of pleading "no duty" (or "no breach of duty") as a distinct alternative defence to volenti in actions against intoxicated drivers. Professor Fleming noted that what lay behind the practice was a tendency to equate knowledge with acceptance of risk, as in the contention that knowingly to get into a car with an intoxicated driver establishes without more a relation with a proportionately reduced expectation (and duty) of care.
Professor Fleming concluded that part of his work (published in 1998) with the comment:
"It is worth noting that in no modern reported case has a plaintiff been completely barred (whether on a theory of reduced standard of care or voluntary assumption of risk), instead of merely having his damages reduced for contributory negligence."
In the more recent work "Law of Torts" 3rd ed, Balkin and Davis published in 2004 the learned authors said:
"Since the advent of the apportionment legislation, the courts have been much more inclined to support the defence of contributory negligence instead of volenti, to the extent that, in recent cases of a passenger suing a drunk driver, volenti has been described as a defence which has 'seldom succeeded' and is an 'out‑worn maxim' or 'practically a dead letter'. The reason for this shift is not hard to find: contributory negligence apportions the responsibility between the parties in the light of the causative influence of each, whereas a successful defence of voluntary assumption of risk will excuse the defendant from the foreseeable consequences of his conduct, notwithstanding that that conduct remains a cause, and in many cases the only or a substantial cause, of the plaintiff's injuries. These judicial views have been reinforced by legislation in New South Wales which abrogates the defence of volenti in respect of any motor accident and replaces it with a presumption of contributory negligence, and in South Australia and the Australian Capital Territory, which prohibits a drink driver from raising the defence of volenti against a passenger in the car, but which also raises a presumption of contributory negligence against the passenger."
The learned authors went on to observe that it has been regarded as unreal to embark on an enquiry as to whether the driver's intoxication, and the passenger's awareness thereof, was such as to create the special and exceptional circumstances necessary to transform the content of the driver's duty (380).
In Western Australia the Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947 does not abolish the defence of volenti but provides that whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity or could by the exercise of reasonable care have avoided the consequences of the defendant's act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff. Consequently contributory negligence in Western Australia is not a complete bar to recovery by the plaintiff. Parliament did not see fit, by that legislation, to abolish the defence of volenti non fit injuria.
As counsel for the defendant pointed out the Civil Liability Act 2002 came into effect in Western Australia on 1 December 2003, subsequent to the event giving rise to the claim by the plaintiff. I note that s 5L of that Act provides for a presumption that an intoxicated person was contributorily negligent unless that person establishes on the balance of probabilities that his or her intoxication did not contribute in any way to the cause of the harm suffered by them. Counsel for the defendant urged me to take a "very robust" approach and to say that when you have "this kind of conduct" there can be no duty extended in favour of a plaintiff where the plaintiff voluntarily becomes inebriated and voluntarily rides in a motor vehicle being driven by a driver known by the plaintiff to be equally inebriated.
To adopt the approach urged upon me by counsel for the defendant would be to deprive the plaintiff of his right to recover damages in circumstances where the primary cause of the plaintiff's injuries was very clearly the negligent driving of the defendant. 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. The plaintiff was not so drunk as to be incapable of appreciating the risk. I find that, from the back seat of the vehicle, he called out "Josh don't let him drive. He's under fines suspension and he's drunk so don't let him drive". The fact of the matter is that Josh, who was the owner of the car and sober, did let him drive. I find that he did so in circumstances where the defendant was intimidating and demanding.
I accept the rationale advanced by Professor Fleming in his work (op cit p 334) that:
"contributory negligence by merely reducing, instead of extinguishing, recovery serve as a deterrent for both parties, the driver as well as the passenger. By not letting the former escape scot‑free, the law of torts is thus doing its share to combat drunk driving by prompting his insurance company to discipline him by exercising its contractual or statutory right of indemnity and increasing his future premiums. Nor is it unjust to permit the passenger some recovery, for his fault is usually much lesser, and there is no sense whatever in discriminating against one who was aware of his driver's impaired condition rather than so intoxicated himself as to be beyond realising it (in which case assumption of risk would fail for want of full comprehension of it)."
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. I find that both the plaintiff and the defendant had drunk a similar amount of beer and were both far too intoxicated to be safely in control of a motor vehicle. It is the case that the plaintiff himself did not attempt to drive at all during the course of the day, being content to be driven by others. Joshua Reid said that on the way to the hairdresser's salon in Mount Hawthorn the defendant asked to drive and was allowed to take the wheel. Clearly, even at that point, the defendant had had far too much to drink to be driving safely. It may be that Joshua Reid did not appreciate quite how much the defendant had consumed. He was able to say that the defendant was under the influence of alcohol but was uncertain as to the extent of that influence.
The plaintiff in evidence had no recollection of the defendant driving for part of the journey to Mount Hawthorn. When the party were leaving the hairdresser's salon after having had more to drink the defendant got into the back seat and Joshua Reid got into the driver's side of the front seat and started the vehicle. The defendant argued with Joshua Reid who did not want him to drive the vehicle. The defendant was insistent. Eventually Joshua Reid gave in. It was put to the plaintiff in cross‑examination that there would have been a small period of time between the defendant saying to Joshua Reid "Give me the fucking keys" to the moment when there was a change of drivers and everyone was seated in the vehicle. He agreed that there would have been a period of about 30 to 45 seconds. It was put to him that he could have, in that interval, collected his personal belongings and exited the vehicle. He agreed that there was time saying "But I was tired and I was drunk". He said that he thought he would get home safely.
Both Joshua Reid and the plaintiff accepted the same risk. The former was sober and aware that the defendant was, to some degree, affected by alcohol. He did not want him to drive. The plaintiff protested from the back seat that he should not be allowed to drive. There was, as I have said, a degree of insistence and intimidation leading to Joshua Reid's acquiescence. In the moments before the accident I accept that both the plaintiff and Joshua Reid warned the defendant, as he approached the intersection that he was going too fast with the lights about to change. The defendant who, according to the evidence, was generally a safe driver, because of his intoxication misjudged those factors and lost control of the vehicle. It is clear that the defendant's driving had been, to say the least, aggressive as he left the Green Street intersection prior to the accident under heavy acceleration doing what is colloquially known as "a burnout".
In all the circumstances of this case, by reason of the plaintiff's conduct, I am of the view that an apportionment of liability reflecting the plaintiff's failure to take precaution for his own safety should be one‑third.
As to the matter of the seatbelt the onus is on the defendant to prove contributory negligence as it was with respect to the question of the driver's intoxication. It is well settled that a failure to wear a properly fitted seatbelt will amount to contributory negligence and may, depending on the evidence, lead to a reduction in the plaintiff's damages. Generally speaking the defendant must show that the plaintiff's loss and damage would have been less had the seatbelt been worn. In the present case I accept that the plaintiff was wearing a seatbelt and in the seconds prior to the accident, in apprehension of the point of impact with the pole, the plaintiff unbuckled his seatbelt and threw himself to the right behind the driver's seat. He was seated in the left rear seat restrained by a seatbelt apparently properly fitted. As it happened, the point of impact was not on the left rear passenger's door but rather on the left front passenger's door. The occupant of the left front passenger's seat suffered a broken femur.
Professor Fleming says (op cit at p 319):
"… a person's conduct in the face of sudden emergency cannot be judged from the stand point of what would have been reasonable in the light of hind‑knowledge and in a calmer atmosphere conducive to a nicer evaluation of all alternatives. A certain latitude is allowed when 'in the agony of the moment' he seeks to extricate himself from an emergency not created by his own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable in such a situation, and he will not be adjudged guilty of negligence merely because, as it turns out, he unwittingly took the wrong course. Thus when a passenger decided to jump from a coach out of control, he recovered although it appeared that had he stayed on he would have escaped all injury."
Having regard to that passage can it be said in this case that the plaintiff did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury? Undoubtedly he suffered injury after he had unbuckled the seatbelt and dived to the right in an attempt to avoid injury. I accept that in the majority of cases being restrained by a seatbelt will result in the occupant of a motor vehicle in an accident suffering less rather than more injury. The question is whether the plaintiff in this case did not take reasonable care for himself and thereby contributed to his own injury. His perhaps instinctive self‑protective measure was to do what he did in circumstances where the vehicle was sliding sideways through an intersection approaching a metal pole. His judgment as to the point of impact appears to have been wrong by a matter of centimetres having regard to the photographs (exhibit 1) of the vehicle. It may be that had he remained restrained in the seatbelt he might well not have suffered the injury that he did suffer. That conclusion is one that can be readily drawn with the benefit of hindsight. Accepting as I do the plaintiff's account of what happened in the seconds leading to the impact and the steps that he took for his own safety based on his apprehension of the danger to him I am not prepared to conclude that his conduct was so unreasonable in the circumstances of that fleeting moment as to amount to a failure to take reasonable steps for his own protection. Accordingly, I make no apportionment by reason of the plaintiff's conduct in unbuckling his seatbelt in the circumstances in which he did.
It follows from the foregoing that the plaintiff in this case should recover two‑thirds of the damages which would otherwise be awarded to him resultant upon his injuries suffered in consequence of the defendant's negligence and which are yet to be assessed.
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