Hanson v the Motor Accidents Insurance Board
[1987] TASSC 61
•18 November 1987
Serial No 58/1987
List “A”
COURT: SUPREME COURT OF TASMANIA
CITATION:HANSON v THE MOTOR ACCIDENTS INSURANCE BOARD [1987] TASSC 61; A58/1987
PARTIES: HANSON, Leonie Pamela
v
THE MOTOR ACCIDENTS INSURANCE BOARD
FILE NO/S: 112/1984
DELIVERED ON: 18 November 1987
DELIVERED AT: Hobart
JUDGMENT OF: Cosgrove J
Judgment Number: A58/1987
Number of paragraphs: 16
Serial No 58/1987
File No 112/1984
List "A"
LEONIE PAMELA HANSON v THE MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT COSGROVE J
18 November 1987
This is an action under the Fatal Accidents Act 1934 brought by the plaintiff as administratrix of the estate of Rex Michael Hanson who died on the 20 January 1984. The action is brought against the defendant Board because of its statutory liability to indemnify Lewis James Edwards who also died on the 20 January 1984. I find the following facts.
At about 10.30am on the 20 January 1984, Mr Anthony Stephen Randall and his 4 year old son, called to see Mr Randall's sister, who was Mrs Henry Stafford and who resided at 86 Paine Street, Burnie. When Mr Randall arrived he found Mr Edwards and Mr Stafford playing cards and Mr Edwards was drinking beer. Mr Stafford was not drinking at the time, but Mr Randall joined with Mr Edwards in consuming some alcoholic liquor. Mr Randall had no means of transport and it was arranged that Mr Edwards would drive him and his son back to his home town of Smithton. On the way, they called into Mr Hanson's residence at Somerset. After some discussion, the particular circumstances of which caused a great deal of debate, but which are in my view mainly irrelevant, Mr Hanson, Mr Stafford and Mr Randall and his 4 year old son left in the car driven by Mr Edwards. Their joint purpose was to take Mr Randall and his son to Smithton and return to Burnie that evening. They stopped at the Seabrook Hotel and purchased some bottles of beer, stopped again at Rocky Cape and again at the tavern just past Rocky Cape. There they purchased some more bottles and went to Smithton. On arrival at Smithton, Mr Randall and his son left the vehicle. When he last saw Mr Stafford, Mr Hanson and Mr Edwards, they were all sitting in the front seat of Edwards' vehicle. At about 6.30 that evening, on a straight stretch of road at Edgecombe Beach which is slightly east of Port Latta, the vehicle left the road and collided with a pole. All three occupants of the vehicle were killed. An eye witness, Mr Atkins, said that prior to the collision he saw the vehicle move into the loose gravel on the northern side of the road on four or five occasions and was pulled back onto the bitumen surface fairly violently. He estimated the speed of the vehicle to be in excess of 110 kilometres per hour and said that after the last of the corrections, the vehicle completed a 180 degree turn so that it was actually going backwards at the time when it collided with the pole. The photographs show that the roof of the vehicle was totally flattened and the pathologist's reports indicate that all three occupants of the vehicle received severe head injuries. Stafford was wearing a seat belt but the others were probably not. At the time of his death Hanson had a blood alcohol level of 0.275 grams of alcohol per 100 millilitres of blood and Edwards' blood alcohol level measured in the same way was 0.319. I am prepared to infer that the difference between the two indicates the head start in drinking which Edwards had, and that probably their drinking throughout the time which elapsed between leaving Burnie and their deaths was on a par. On any view of the evidence that time could not have been more than five hours and was probably a little less. Mr Randall put the time of his departure from the vehicle at about 5.30 or 5.45, but for several reasons I have some hesitation in accepting his evidence as accurate. However I would think it reasonable to infer that the journey from Smithton back towards Burnie commenced about 6 o'clock, the distance from there to Edgecombe Beach being something in the order of 35 kilometres.
Dr R S Parsons gave evidence that in order to reach a blood alcohol content level of 0.275 over a four hour period, it would be necessary to consume the alcoholic equivalent of 8 or 9 26 oz. bottles of beer. From that evidence I would conclude that it is likely that Hanson and Edwards were drinking while the vehicle was in motion. If not they were drinking at a very fast speed on their stops. In either case the programme of drinking was such that it could not have been embarked upon and continued without both of them realizing that the end result would be intoxication of a high degree. Putting Randall's evidence to one side (and in any event it does not add much to the picture) that is all that is known of the conduct of the parties between the hours of 1.30 or 2pm to 6.30pm.
There is a sufficient foundation in the evidence for the inference that Edwards' manner of driving at the relevant time fell below the standard of reasonable care, objectively and impersonally measured, which the law demands of a driver in an ordinary situation. But Mr Elliott for the defendant Board raised the three defences, well known since The Insurance Commissioner v Joyce (1948) 77 CLR 39, of (a) an absence of or an attenuation of that duty of care because of the special relationship between the deceased as passenger and Edwards as driver, (b) volenti non fit injuria, and (c) contributory negligence, now only a partial defence. It is therefore necessary to canvass the juridical basis of his submission.
Perhaps idiosyncratically, I have found it constructive to commence that examination by a consideration of the cases relating to the defence of illegality because (a) there is some parallel between the anti–social conduct in which both Hanson and Edwards engaged and illegality, and (b) it seems to me that those cases have some part in the history of the development of this particular segment of the doctrine of duty of care.
In Henwood v The Municipal Tramways Trust (SA) (1938) 60 CLR 438 at p.446 Latham CJ said this:
" ... there is no general principle of English law that a person who is engaged in some unlawful act is disabled from complaining of injury done to him by other persons, either deliberately or accidentally. He does not become caput lupinum. Other persons still owe to him a duty to take care, the extent of that duty being determined by the circumstances of the case which create the duty."
In Smith v Jenkins (1969) 119 CLR 397 it was held that if two persons participate in the commission of a crime, each takes the risk that the other may be negligent in the performance of the criminal act, but Windeyer J. posed the question "had the defendant a duty to the plaintiff to carry out carefully the unlawful enterprise on which they were jointly engaged" and concluded that in the circumstances he did not. In Progress and Properties Ltd. v Kraft (1976) 12 ALR 59 at p73, Jacobs J. said:
" ... A plea of illegality in answer to a claim of negligence is a denial that in the circumstances a duty of care was owed to the injured person. A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed."
In Jackson v Harrison (1978) 19 ALR 129, at 142, Mason J said:
"To deny the existence of the duty in every case in which the parties are engaged in a joint illegal enterprise is to discard foreseeability as a criterion. The appellant's argument would have greater force if it attempted to assert that the unlawful conduct of the parties, whether it be serious or slight, is relevant to the existence of the duty to the extent to which it goes to foreseeability... A more secure foundation for denying relief, though more limited in its application – and for that reason fairer in its operation – is to say that the plaintiff must fail when the character of the enterprise in which the parties are engaged is such that it is impossible for the court to determine the standard of care which is appropriate to be observed."
It seems to me that there has been a development in this branch of the law perhaps founded on, but certainly consistent with the oft quoted passage from the dissenting judgment of Dixon J in the Insurance Commissioner v Joyce (supra). I take the liberty of setting out that passage again:
"It appears to me that the circumstances in which the defendant accepts the plaintiff as a passenger and in which the plaintiff accepts the accommodation in the conveyance should determine the measure of duty and that it is a more satisfactory manner of ascertaining their respective rights than by opposing to a fixed measure of duty exculpatory considerations, such as the voluntary assumption of risk or contributory negligence."
It is perhaps also useful to note the statement by Dixon J at p56 in which he said that when a plea of volens is made the duty of care may persist beyond or outside the specific conduct or state of things which is the subject of consent. (See also Diplock LJ in Waldridge v Sumner [1963] 2 QB 43 at 69 and the report of Marshall v Osborne & Another in [1982] 1 QB 857).
I was referred also to Roggenkamp v Bennett (1950) 80 CLR 292, Jansons v The Public Curator of Queensland [1968] QR 40, Jeffries v Fisher [1985] WAR 250 and Duncan v Bell and State Government Insurance Office (Queensland) [1967] QR 425. I need not to stop to discuss these cases except to note the passage from the judgment of Mack J in the latter case at p430 where his Honour said:
"Whether the duty to take care no longer exists or whether the duty or care is so slight as to be the duty only of a drunken driver does not seem to matter from a practical point of view."
I come now to Cook v Cook (1986) 68 ALR 353. In my opinion, this case clearly establishes two things.
1The duty of care owed to a passenger may be quite different from the duty of care owed to the public at large and,
2Special circumstances can "transform the relationship between a particular driver and a particular passenger into a special or different class or category of relationship ... in which the duty of care owed by the particular driver to the particular passenger will be either expanded or confined by reference to the objective standard of skill or care which is reasonably to be expected of a driver to a passenger in the category of a case where that special or different relationship exists".
It is noteworthy also that the court apparently approved the statement of Dixon J. in Joyce's case to this effect:
"If he 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".
The burden of proving a relationship in a special category lies upon him who asserts it.
In my opinion, it would be an affront to common sense not to hold that Hanson for a long time perceived that the conduct in which he and Edwards were engaging was going to lead to a situation where Edwards no longer had any reasonable control over his own conduct or the motor vehicle which he was driving and further, that there must have been a time when he realized that the point of no return had been passed and that Edwards was no longer capable of driving the vehicle in any satisfactory way at all. It is, I think, true, but beside the point, that Hanson's own drinking may have released his inhibitions to the extent that he was prepared to accept a risk which he would normally have refused. When the first stage was reached, plainly he had a duty to cease drinking himself so as to exercise some control over the situation and, if he could, to persuade Edwards to either cease drinking or cease driving. When the vehicle was stopped at Smithton in order to allow Randall and his son to depart, Hanson had an opportunity to disengage himself from what was obviously becoming an extremely dangerous situation. He failed to avail himself of it. It is contended that by that time he might have been so drunk as to be unable to comprehend the degree of Edwards' intoxication, but to suggest that his own intoxication had that effect is to some degree conjecture, and in any event there must as I have said have been a time precedent to that when he could have seen and understood the warning signs and taken steps to preserve his own competence. True it is that Edwards owed a duty to other road users undiminished by his consumption of alcohol, but it would be unreal to regard Hanson who was fully engaged in a drinking bout in the course of a journey to be the beneficiary of a duty imposed upon Edwards which he, Hanson, must have known that Edwards was incapable of carrying out. In those circumstances it seems to me that the law would not impose such a duty upon Edwards vis a vis Hanson. Edwards would have perhaps a residual duty to behave as carefully as he could given his condition as known to Hanson but in the circumstances it is impossible to quantify that (see Jackson v Harrison (supra)) and also impossible to relate it to the circumstances of the final fatal collision. I would therefore hold that there was no discernible duty owed by Edwards to Hanson which Edwards has been seen to breach, and that therefore the plaintiff's claim must fail.
This is a case in which I think it is appropriate to assess damages despite my dismissal of the plaintiff's claim. There were a number of contentious issues in relation to damages and as to those, I hold as follows:
1I accept Mr Elliot's contention that is proper to assess the damages in respect to the children on the basis that dependency will cease at or about age 16.
2I consider that the value of the deceased's portion of the joint tenancy of the house property should be deducted and I can see no reason to set off any item against that.
3I have come to the conclusion that the prospects that the widow will, in the not too distant future, obtain support from a re–marriage or a more or less permanent extra–marital relationship are high. Since her husband's death she has already had two lovers, with the second of whom she now has a regular sexual and social relationship, albeit confined to week–ends by reason of the fact that her lover does not reside in Burnie. She said herself that she had no difficulty at all with sexual and social relationships with men, and indicated that she was a strongly sexual person. Her appearance confirmed this.
I will set out below the damages as I calculate them, but because I accept Mr Elliot's tables as to loss of income, I will not venture into detail in that respect.
Leonie Pamela Hanson
Loss of income pre–trial 14,715
Loss of future support 128,175
less discount for
prospect of future
support from marital
or extra–marital
partner – 50% 64,088 64,088
78,803
Less benefit from estate 10,245
68,558
Less M.A.I.B. payments 22,050
46,508
Plus funeral expenses 1,647
Final Balance 48,155
Kerry Michael Hanson 25,607
Tammy Maree Hanson 40,362
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