McPherson v Whitfield

[1995] QCA 62

IN THE COURT OF APPEAL	[1995] QCA 062
SUPREME COURT OF QUEENSLAND

Appeal No. 121 of 1994

Brisbane

[McPherson v. Whitfield & Anor]

BETWEEN:

ANDREW DAVID McPHERSON

(Plaintiff) Respondent

AND:

JUSTIN WHITFIELD

(Defendant) Appellant

AND:

SUNCORP INSURANCE AND FINANCE Appellant

(Defendant by Election)

Macrossan CJ McPherson JA Lee J

Judgment delivered 15/03/1995

SEPARATE CONCURRING REASONS FOR JUDGMENT OF THE CHIEF JUSTICE,

McPHERSON JA AND LEE J.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	TORT - Contributory negligence - Volenti - P Passenger in a vehicle driven by drunk driver - P injured in accident - P had opportunity to get out - P knew driver was drunk.
Counsel:	Mr Fleming Q.C. with him Mr Hanlon for the appellants. Mr Grant-Taylor, with him Mr King for the respondent.
Solicitors:	Baldwin Conroy Garrahy for the appellants. Neilsen Stanton and Parkinson for the respondent.
Hearing Date(s):	11/11/94

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 121 of 1994
Brisbane
[McPherson v. Whitfield & Anor]
Before: Macrossan CJ

McPherson JA

Lee J

BETWEEN:

ANDREW DAVID McPHERSON

(Plaintiff) Respondent

AND:

JUSTIN WHITFIELD

(Defendant) Appellant

AND:

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Appellant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 15/03/1995

On 10 September, 1987 the plaintiff respondent was travelling as a passenger in a car driven by the first appellant when it left the road and overturned. The respondent in consequence suffered certain injuries. The Trial Judge found that the respondent had failed to take proper care for his own safety in travelling in the vehicle when it was driven by the first appellant in the circumstances which then prevailed. It was held that the respondent's responsibility should be assessed at twenty percent and that of the first appellant at eighty percent.

On the appeal, although other matters were mentioned the only significant issue debated was the extent of the respondent's contributory negligence.

The background facts sufficiently appear in the following summary.

The respondent, the first appellant and another young man Boaler had been drinking together on the day of the accident. This took place at several locations over a period of some three hours. The result was that all three became intoxicated but they nevertheless decided to journey home in Boaler's car he having been the driver throughout the course of the time they had spent together. The amount that each had drunk was about the same. They had to journey home from Noosa to Imbil and Boaler while driving turned off the Bruce Highway onto Skyring Road. There he stopped the vehicle asking the respondent to take over the driving.

Boaler stated that he had or was getting a headache and he did not have his glasses. The respondent refused to drive but then the first respondent on being asked by Boaler to drive did agree and thereupon commenced to drive. The respondent remained in the back of the car where he had been sitting with his seat-belt fastened.

Although Boaler, whose car it was, was a licensed driver both the respondent and the first appellant who were somewhat younger than Boaler were unlicensed. The respondent was just seventeen years of age at the date of the accident and the first appellant was only sixteen. The Judge found that the reason why the respondent did not take over as driver when requested to do so was because he did not feel capable of driving. When the changeover of drivers occurred the vehicle was on a fairly lonely back-road some fourteen kilometres from the respondent's home. When the first appellant commenced to drive he did not proceed at an unduly fast speed and seemed rather to stay within the speed limit but the car was weaving to some extent from time to time. Eventually, the first appellant lost control in a patch of gravel after the bitumen surface of the roadway gave way to gravel. It was at that point that the vehicle left the roadway and overturned.

The Judge has found that the first appellant's driving was well below the standard of a reasonably competent driver. The Judge has not expressly found that the accident was caused by inexperience combined with consumption of alcohol but the Judge's reasons would seem to imply that the first appellant's drinking had this effect and on the hearing of the appeal counsel for the respondent accepted that this implication should be drawn. The respondent was aware of the first appellant's lack of experience as a driver and because they had been in company together throughout the day was aware also of the fact that he was intoxicated. A test taken after the accident attributed a blood alcohol concentration of .149 to the first appellant.

The notice of appeal filed in the present case challenged the assessment of quantum of damage made by the Trial Judge but when the appeal hearing commenced counsel for the appellants felt obliged to concede that that aspect of the appeal could not be convincingly pursued. This concession meant that the quantum of damages assessed needed to be investigated no further. On the face of the award the assessment did not appear to lack justification.

A further issue, namely the possible application of the defence of volenti non fit injuria also needs no detailed consideration on the appeal. Such a defence was not specifically raised on the pleadings and although there was some debate at the trial about whether the appellants should be permitted to amend specifically to raise that defence the application for leave was made at a very late stage and was opposed by counsel for the respondent. It was objected that the conduct of the case on behalf of the respondent both pre-trial and at the trial had been restricted as a result of the absence of such a plea. There is substance in that objection. The upshot was that the appellants were not permitted to make the amendment they sought. There is no good reason to question that decision. It might be added that defences of volenti based as they are on an implied consent to accept the risk of injury in circumstances where that risk was fully appreciated have not in recent times found much encouragement by the courts: see e.g. Suncorp Insurance & Finance v. Blakeney (1993) 18 M.V.R. 361.

The principal argument before us thus became confined to the issue of contributory

negligence.

Appeal courts are unwilling lightly to interfere with apportionments assessed in cases where contributory negligence has been found: see e.g. A.V. Jennings Construction Pty Ltd v. Maumill (1956) 30 A.L.J. 100 at 101 2nd col. In view of the way in which some of the argument before us proceeded it is as well to add that it cannot be accepted that there is some scale to be derived from other decided cases that can be used to determine appropriate apportionments of responsibility. These essentially factual assessments must depend upon a survey of all of the relevant circumstances operating in each particular case.

The result is that the appellants on whom the burden of proof lay to establish contributory negligence must now assume some added burden in seeking on appeal to alter the apportionment made below. It will be helpful to examine the Trial Judge's reasoning in a little more detail.

The Judge's reasoning accepts that while the accident happened because of the driver's intoxication and lack of driving experience the respondent was in the circumstances aware of or should be taken to have been aware of the risk of an accident due to the operation of those two factors. For this reason the Judge has found an absence of care on the part of the respondent for his own safety. The respondent, sitting as a passenger in the car wearing his seat-belt otherwise made no positive contribution to the accident or to the injuries which he suffered.

The Judge noted that the respondent's reason for staying in the car when the first appellant took over as driver was the respondent's natural desire to get home. The Judge added his view there were other factors which operated such as the respondent's immaturity and peer group pressure. He said that the respondent's own intoxication probably also had a part to play although he stated that it provided the respondent with no excuse. The Judge's findings concerning matters motivating the respondent in his decision to stay in the car when the first appellant took over as driver can be accepted as open to be made. The Judge had the advantage of seeing the respondent as a witness before him and observing the commendable frankness with which he gave his evidence.

It has to be noted that this is not a case where the Trial Judge has reduced his assessment of the liability of a passenger who failed to exercise reasonable care for his own safety because his perception of the risk to himself was clouded by his own self-induced intoxication. On the contrary the Judge has specifically indicated that he was not making any reduction in the percentage of responsibility to be attributed to the respondent on that account.

On the other hand, the respondent has not cross-appealed seeking to reduce the relative degree of responsibility found against him by claiming that he should not because of his self- induced intoxication be taken to have been aware of the risk involved in his staying in the car. Counsel for the respondent on the hearing contented himself with the submission that the assessment of contributory negligence which was found should not be disturbed. The present case has, quite justifiably, proceeded upon the basis that the respondent did not lack awareness of any of the risks which should reasonably have been apparent to him if he had been sober.

The Judge's statement that the respondent passenger's intoxication should not be permitted to excuse him or, by implication, reduce the apportionment of responsibility against him therefore has no forensic relevance in the circumstance of this case. The result is that some of the problems to which attention has been given in other cases and texts dealing with the effect on the issue of contributory negligence of a plaintiff's own intoxication and reduced level of perceptions of relevant factors do not call for close attention in this case. Modern consideration of such issues usefully starts with Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39 and a number of other cases are collected in the judgment of Cooper J in Morton v. Knight [1990] 2 Qd.R. 419. There is no need in the present case to examine the correctness of all of the pronouncements made by Cooper J. in Morton v. Knight but it may be noted that some questioning of that decision as well as a further full examination of authorities are to be found in an article contributed by Karen Hogg in (1994) 2 Torts Law Journal 37. The following limited observations are sufficient in this case. The test involved in assessing the extent of the failure to take reasonable care for one's own safety which is what the issue of contributory negligence is concerned with, invites attention to the level of care which can be expected of the reasonable man in the circumstances as they present themselves. If a person should reasonably foresee that he may subsequently be confronted by the necessity to choose whether or not he will travel as a passenger in a car driven by an intoxicated driver but nevertheless imprudently proceeds to drink to excess diminishing his capacity to discriminate and reducing his ability to make a reasonably careful decision when the occasion does arise, he may well not escape a finding of contributory negligence. The test which will apply in these circumstances will regard the behaviour to be expected of a reasonable man when the risk of the future eventuality to be confronted should reasonably have been apparent. This is a different situation from that in which a person will be placed where he allows himself to become intoxicated in circumstances where no reasonably foreseeable specific risk to his safety should have been apparent to him. If, in these circumstances, while lacking relevant conscious awareness he is placed into or induced to enter into the car of an intoxicated driver he should not on that account be held responsible for a failure to take reasonable care for his own safety.

The Trial Judge in the present case in apportioning responsibility eighty/twenty in the respondent's favour took into account the respondent's age and maturity level, the events of the day in the course of which the respondent was in the first appellant's company, the first appellant's age and lack of a driver's licence and the amount of liquor that each of them had taken. No error is involved in his taking these matters into account. He also took into account the fact that the first appellant was the one who assumed control of the vehicle with the capacity for doing harm that was involved in that role if the vehicle were not properly handled. Again no error appears in that respect. There was no reason to find that the respondent should have anticipated that he would be called upon to decide upon the wisdom of remaining in the car as a passenger with the first appellant taking over as driver. Also, to the extent that it was relevant, there was no case made out that a similar accident would have happened if Boaler had continued to drive. Therefore it should be accepted that the Judge in the circumstances of this case correctly considered the issue of contributory negligence on the basis of the respondent's staying in the car when the first appellant took over as driver. Realistically, the issue fell to be judged on the effect of the respondent's staying in the car at that time fourteen kilometres from home on a lonely back road. When Boaler, unexpectedly as it would appear, declared that he would drive no further the respondent, quite properly, brought his own judgment to bear and decided that in his condition he himself should not drive. It was in these circumstances that the first appellant elected to take over, rather than following the respondent's example with the possible consequence that the car would have remained where it was for a period with benefits to the sobriety of all concerned. He thereby, perhaps, projected to the others some impression of confidence in his ability to undertake the task competently. This confidence was, of course, misplaced but it was a relevant feature of the situation. The conclusion that the first appellant who assumed control of the motor vehicle was considerably more blameworthy than the respondent is fully justified. No reason has been shown to regard the Judge's apportionment of responsibility as inappropriate. The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 121 of 1994

Brisbane

Before Macrossan C.J.

McPherson J.A.

Lee J.

[Whitfield v. McPherson]

BETWEEN

ANDREW DAVID McPHERSON

(Plaintiff) Respondent

AND

JUSTIN WHITFIELD

(Defendant) Appellant

AND

SUNCORP INSURANCE AND FINANCE

(Defendant by Election) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 15th day of March 1995

I have read the reasons for judgment of the Chief Justice and Lee J. I agree with both of

them.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 121 of 1994

Before Macrossan CJ

McPherson JA

Lee J

[McPherson v. Whitfield & anor]

BETWEEN:

ANDREW DAVID McPHERSON

(Plaintiff) Respondent

- and -

JUSTIN WHITFIELD

(Defendant) Appellant

- and -

SUNCORP INSURANCE AND FINANCE

(Defendant by

Election) Appellant

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment delivered 15/03/1995

I have had the advantage of reading the reasons for judgment of the Chief Justice and agree with him that the appeal should be dismissed. In light of the general importance of the issues raised in the appeal, however, I think it desirable that I add some comments of my own.

Both the first appellant, who was the defendant driver, and the respondent who was the injured plaintiff passenger, were affected by alcohol and it is on that circumstance that the grounds of appeal focus. They are:-

"(a)	that the learned trial Judge refused to allow an amendment to raise the pleading of volenti non fit injuria during the trial;
(b)	that the learned trial Judge did not give consideration to that defence when it was raised on the pleading in any event;
(c)	the learned trial Judge did not properly assess contributory negligence against the plaintiff given the degree of intoxication of the defendant.
(d)	the damages awarded by the learned trial Judge were excessive."

It was conceded at the hearing of the appeal, however, that neither ground (b) nor ground (d) could be substantiated. Accordingly, argument narrowed to the issue of volenti and the question of apportionment.

Intoxication

Issues concerning the effect of a driver's intoxication on the right to damages of a passenger injured by the negligent management of the vehicle in which they are travelling regularly come before the courts. Nevertheless, it might still be said that the law is in a state of relative flux concerning the precise manner in which those issues should be brought into account in determining the question of liability.

The three hurdles typically raised by a defendant in such a case to either avoid or minimise his liability are those of no breach of duty, volenti and contributory negligence: see e.g. The Insurance Commissioner v. Joyce (1948) 77 C.L.R. 39, 57-8; Roggenkamp v. Bennett (1950) 80 C.L.R. 292, 298; Duncan v. Bell [1967] Qd.R. 425, 429-30; Jansons v. Public Curator of Queensland [1968] Qd.R. 40, 42. Of these the first is, of course, not strictly a matter of defence but rather a matter going to the primary issue of liability. Of the remaining two, a plea of volenti, if successful, is a complete answer to the plaintiff's claim whereas one of contributory negligence will usually only go in reduction of the plaintiff's damages, the court being required to apportion responsibility for the injuries between the parties: Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952, s.10. But before one can logically come to consider such questions it must first be established that the driver's intoxicated state caused or materially contributed to the accident and, a fortiori, its effects. Without that issue having first been resolved in the affirmative, the matters of which I have spoken simply do not arise: cf. Jansons, 43. In the present case, as the Chief Justice has indicated, it is accepted that the trial Judge implicitly so found.

In determining the issue of liability in the case at hand the usual objective standard, namely that of a reasonably competent driver, was applied. No challenge was made to that approach on appeal and accordingly no issue arises in relation to it. I would observe for future reference though that it may become necessary for the court to consider whether, in accordance with the principles enunciated by the High Court in Cook v. Cook (1986) 162 C.L.R. 376, it might not be appropriate in a case such as this to judge the driver's conduct by reference to some modified standard: see, however, Suncorp Insurance & Finance v. Blakeney (1993) 18 M.V.R. 361, 368; Radford v. Ward (1990) Aust. Torts Reports 81-064.

Having said that, I turn to consider the appellant's complaints in the order in which they are listed in the notice of appeal.

Volenti non fit injuria

Senior counsel for the appellant recognised that from a practical point of view, unless it could be shown that the defence of volenti was likely to succeed, there would be no prospect of obtaining leave to amend in order to raise the issue on appeal. For that reason most of the debate centred around the substantive application of the defence on the facts rather than the more formal issue of leave and it is that aspect that I will focus on.

A successful plea of volenti involves proof of two elements: firstly, an appreciation by the plaintiff of the risks involved in the undertaking, and secondly, full acceptance by him of those risks: Smith v. Baker & Son [1891] 325; Imperial Chemical Industries Limited v. Shatwell [1965] A.C. 656; Roggenkamp, 300; Blakeney, 364-5, 368. It is no doubt the emergence of the second of these factors as the focus of judicial attention that has led to the less vigorous use of the defence over the last century. Although a determination of each of these questions depends ultimately on subjective considerations, it cannot be doubted that acceptance of a particular risk may be express or implied. But where, in a case such as this, it is sought to be implied from the mere fact that the plaintiff has undertaken the activity which is said to give rise to the risk, it will, in my opinion, often be difficult if not impossible to infer that the plaintiff has "taken the legal risk of injury upon himself": Wilkinson v. Joyceman [1985] 1 Qd.R. 567, 568. Indeed the observation could be made that as the law in this area has progressed, it has become harder for a defendant to satisfy the onus of establishing acceptance of a risk in the relevant sense, the tendency nowadays being to head for the option provided for by the apportionment legislation.

There are, however, sound reasons for this. In the first place the plaintiff's consent to the risk, if it be established, cannot be said to affect the defendant's culpability for the accident, merely his liability. The effect then of a finding of volenti is to 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. Bearing in mind the severity of the consequences from the plaintiff's point of view then, it is not at all surprising that a court would require very clear conduct indeed before reaching the conclusion that a person who had not expressly done so, had discharged the tortfeasor from liability in respect of the reasonably avoidable consequences of his conduct: see Cook, 389 and cf. Rootes v. Skelton (1967) 116 C.L.R. 383. Additionally, and from a more general point of view, one might consider it more in accord with contemporary thinking that in the case of an injury produced by a multitude of causes, greater justice would be achieved by the court arriving at a "fair and reasonable allocation of the responsibility for the damage": Pennington v. Norris (1956) 96 C.L.R. 10, 17, rather than by allowing the loss to fall solely on the shoulders of one of the parties.

Finally, and without necessarily deciding the point, if the true theoretical basis of the defence is some form of voluntary, and typically unilateral, "election, agreement or consent to accept the risk" (Blakeney, 364) then it might well be thought that the defendant's ability to assert the defence arises at least partially because he has conducted himself on the footing that such a right exists. On that hypothesis it would be relevant to examine the defendant's conduct to determine whether some alteration of position can be demonstrated. If, for example, there is no indication that the defendant was either aware of or acted on the faith of the plaintiff's alleged acceptance of the risk, it is difficult to see the legal basis on which he may later set up that allegation in defence of his conduct or on which the plaintiff would be precluded from subsequently resiling from it: cf. The Commonwealth v. Verwayen (1990) 170 C.L.R. 394, 406. By way of contrast, one could readily see the injustice involved in allowing a plaintiff to seek recourse against a defendant in circumstances where he had led the defendant to believe that he would not do so, the defendant then having acted in accordance with that understanding. In the typical case where the passenger has merely entered the vehicle with a driver whose capacity to drive safely has been impaired but not destroyed there is, I think, much to be said for the view that the defence is "practically a dead letter": Blakeney, 368.

It might of course be otherwise if, to the plaintiff's knowledge, the activity was so inherently dangerous that no amount of care could have made it safe or if, again to the plaintiff's knowledge, the defendant was operating under such a disability that he could not reasonably be expected to exercise any real degree of care at all. But that is to say no more than there may be cases in which either all or some of the risks attending a particular activity are so great that one who voluntarily undertakes that activity must be taken to have accepted those risks as the obvious and unavoidable consequences of it. In those circumstances, the necessary elements of the defence may well be inferred from the mere fact of the plaintiff's state of knowledge at the relevant time: cf. Jeffries v. Fisher [1985] W.A.R. 250, 253.

In general, however, I think that it can be said that where, despite some incapacity or inability on the part of the defendant, some measurable degree of care remains exercisable by him one should be extremely wary in applying the defence. More often than not in such a case, the plaintiff will still maintain an expectation that the driver will drive with some degree of prudence and while that expectation remains he cannot be said to have voluntarily assumed the risk of an accident occurring. If, judged by reference to the applicable standard, the defendant is found to have acted unreasonably and if that conduct is found to have caused or materially contributed to the plaintiff's injuries, it is difficult without more appearing to see any legitimate foundation for the inference that the plaintiff has absolved the defendant from the foreseeable consequences of his negligent conduct. By merely accepting a ride with a person whom he knows to be intoxicated it cannot be said that the passenger gives license to the driver to drive the vehicle in any fashion he sees fit, no matter how recklessly or wantonly that may be.

The present case is in that category. The appellant was not, to the respondent's knowledge, so grossly intoxicated to have been incapable of driving. The respondent's conduct and overt concern for his own safety were completely incompatible with the suggestion that he had voluntarily assumed a risk which, on the findings, could reasonably have been avoided by the appellant. Moreover, there is nothing in the appellant's conduct which would indicate that he was accepting the responsibility as driver on any modified basis or special understanding.

I stress again that this was not one of those rare cases in which the driver's ability to manage the vehicle has been so grossly affected by alcohol that, to the plaintiff's knowledge, it had been reduced to a practically unquantifiable level. I add also that it was not a case where, notwithstanding the absence of such a degree of debilitating intoxication, the plaintiff and the defendant deliberately set out on a course of reckless conduct. In cases of such an extreme nature the issue of volenti may arise, not simply from the fact of the plaintiff having accepted a ride with the defendant but also from their contemplation as to the course which events would be likely to take. Indeed, in such a case, the difficulty or impossibility of judging the defendant's conduct by reference to any objectively determined standard might well raise a real issue as to whether a court would be willing or able to do so: cf. Gala v. Preston (1991) 172 C.L.R. 243, 254-5; Italiano v. Barbaro (1993) Aust. Torts Reports 81-220. It might then add little to the conclusion to say that the plaintiff had voluntarily assumed the risk: Smith v. Jenkins (1970) 119 C.L.R. 397, 422.

It follows from this discussion and the findings made below that the defence of volenti would inevitably have failed in the present case. So too then must the ground of appeal in respect of it.

Contributory Negligence

This aspect of the appeal has been comprehensively dealt with by the Chief Justice and I wish to express my general agreement with his remarks on the topic.

It is of fundamental importance to note at the outset of any discussion on the issue of contributory negligence that, unlike the approach adopted where the defence of volenti is raised, the court is required to undertake an essentially objective inquiry into the circumstances surrounding the incident in question and, in particular, the plaintiff's conduct in relation to it. That is not to say, however, that subjective elements do not have a role to play. To the contrary, as in the case of most objective inquiries the law recognises the artificiality of maintaining a completely detached position and it is for this reason that the plaintiff's conduct falls to be judged by reference to all of the surrounding circumstances, including factors personal to him such as his age, maturity and mental capacity: see generally McHale v. Watson (1966) 115 C.L.R. 199. It is all too often forgotten that the reasonable person is not some perfectly standardised creature whose persona and characteristics are expected to be immutable. Nor by the same token is he required to have some single pre-determined reaction to every fact situation which he may be asked to confront. The reasonable person is no more than a concept designed to help determine that range of conduct which the community as a whole, comprised as it is of a broad cross section of peoples, ideas and attitudes, would find acceptable.

There may be many ways in which a passenger who accepts a lift with an intoxicated driver may be held accountable for his injuries; not all of them are relevant for present purposes. But no matter how the alleged contributory negligence is said to be manifested in fact, the ultimate issues must always be whether the plaintiff has failed to take reasonable care for his own safety and, if so, whether that failure has been productive of his loss: O'Neill v. Chisholm (1973) 47 A.L.J.R. 1, 2; Morton v. Knight [1990] 2 Qd.R. 419, 424; Banovic v. Perkovic (1982) 30 S.A.S.R. 34, 36. This inquiry presupposes the existence of an objectively foreseeable risk that by doing or omitting to do the act in question, the passenger unnecessarily exposes himself to a danger which he knows or ought to know might cause him harm.

Of course, the answers to these questions are totally dependant upon the facts of each case and I would agree with those who might think it generally unadvisable to enter into a debate about scenarios which do not in a particular case arise. Nevertheless it is I think relevant to mention one matter which was debated during the course of submissions because of the clear view that I have reached in respect of it. That matter relates to the effect, if any, of a plaintiff's own intoxication on the issues now under consideration.

As the Chief Justice has mentioned, the present case did not proceed on the basis that the respondent's own insobriety reduced his perception of the risks involved. Nevertheless, I agree with his Honour that there is no universal rule that self induced intoxication must be excluded from the equation when deciding whether or not a passenger has acted in disregard of his own safety. To the contrary, it may well be of great significance if, at the relevant time, there was no appreciable risk that he would become a passenger in a vehicle with an intoxicated driver. As I read the reasons of the Chief Justice, he, like myself, has some difficulty in accepting the somewhat unforgiving statement of Cooper J. in Morton v. Knight at 429-30 that:

"It is contrary to principle to allow voluntary drunkenness to be used as an excuse to a defence of contributory negligence in entering into the vehicle and proceeding on a journey in such circumstances where the ordinary reasonable and sober man would not do so in his own interests."

That is not to say that in no case may a passenger's failure to remain sober enough to adequately guard against such an eventuality amount to an act of contributory negligence. But those cases in which the plaintiff's conduct in rendering himself incapable of assessing the driver's condition has itself been considered contributorily negligent, have necessarily involved the existence of a foreseeable risk of injury to the passenger at a time when the relevant capacity existed. This in turn has generally required proof of the existence of facts

"which would lead a reasonable person to anticipate the likelihood of the driver becoming intoxicated and which would therefore require him for his own protection to remain sober enough to assess the drivers condition.": Banovic v. Perkovic, 37 per King C.J.

See also Insurance Commissioner v. Joyce, 60; Nominal Defendant v. Saunders (1988) 8 M.V.R. 209, 210, 214-5; Spicer v. Coppins (1990-91) 56 S.A.S.R. 175, 179-80, 182-4; Owens v. Brimmell [1977] 1 Q.B. 849, 866-7. In the absence of such a state of the evidence, however, as King C.J. I think went on to express, there is nothing unreasonable in the plaintiff placing reliance on the defendant, as the driver of the vehicle, to fulfil his duty to remain in such a condition that he may drive the vehicle safely and without unnecessary risk of injury to its occupants. To say that a sober person in those circumstances would have detected the driver's condition is not to the point. It is the passenger's conduct which must be judged and unless the defendant can point to some specific causative act of contributory negligence on his part his allegations in that respect must fail.

I am conscious of the fact that this conclusion may be seen by some as running contrary to the comments of Wanstall J. in O'Shea v. The Permanent Trustee Company of New South Wales [1971] Qd.R. 1, 6-7, but that of course was a case where both the passenger and the driver had been engaged in a joint drinking bout involving the use of a motor vehicle. It was therefore quite distinguishable from the situation which arose in Morton v. Knight and in any event his Honour's comments were obiter and were not joined in by the other members of the Court.

I am also conscious of the view which has been expressed by some that it would be unfortunate if the law were to reach the result that a drunken passenger could recover more than a sober one in similar circumstances: Jansons v. Public Curator of Queensland, 45. With respect to those who might hold that view I would add equally that I can see no social policy to be promoted by a rule the effect of which would be to compel a plaintiff to remain sober enough to independently assess a driver's condition when at all times during which his capacity to do so existed no foreseeable risk of injury to himself arose. The issue as I see it is not whether the law should allow self induced intoxication to be used as an "excuse" of some kind but rather whether the law should require a plaintiff to take precautions against a risk which, at the time when the choice is to be made whether or not to take those precautions, is not foreseeable. Clearly, so far as the later proposition is concerned, if accepted it would lay down a requirement that is contrary to all principle. In my opinion the decision of Cooper J. in Morton v. Knight is not good law.

Having digressed somewhat from the real issue raised in the appeal, I turn now to consider the task which faces the appellant. The criteria prescribed by the apportionment legislation for determining the relative culpability of each of the parties are extremely broad and it is no doubt for this reason that

"[m]uch latitude must be allowed to the original tribunal in arriving at a judgment as to what is just and equitable. It is to be expected, therefore, that cases will be rare in which the apportionment made can be successfully challenged": Pennington v. Norris, 15-16.

The court of first instance is essentially involved in the quantative exercise of determining the extent to which the conduct of each of the parties deviated from acceptable levels and so caused or contributed to the accident. The matter is largely one of impression and judgment. Consequently any party wishing to challenge the resultant apportionment takes on a not insignificant onus if he is to persuade this court to interfere.

As the Chief Justice has pointed out, the trial Judge quite rightly took into account the respondent's age and maturity level, the events of the day, the first appellant's age and lack of driving experience and the amount of alcohol which each of them had consumed. Importantly his Honour also, correctly in my opinion, considered the respondent's desire to get home once the first appellant took over as driver. The car was then 14 kilometres from the respondent's home and on a lonely back road. There was no other apparent means of transport. In view of those matters, his choice to remain in the vehicle was not a completely unreasonable one. In this respect the decision of the High Court in Caterson v. Commissioner for Railways (1972) 128 C.L.R. 99 is of some relevance. There the plaintiff, with his 14 year old son, had driven an elderly friend some 40 miles to board a Brisbane to Sydney express train at Casino. The plaintiff carried his friend's suitcase into the train and before he had time to alight, the train commenced to move away from the platform. The next station was 80 miles away. Thinking of his son alone at the station so far from home he instinctively, and without giving much thought to the risk involved, tried to get onto the platform by jumping out of the carriage and running with the train whilst holding a bar near the door. As a result of that manoeuvre he was injured. The case is not completely analogous but it does demonstrate that the dangerousness of the activity undertaken is not the sole determinant of the reasonableness of the plaintiff's conduct.

In the end result, having considered the facts as found by the learned trial Judge together with the analysis of his Honour's reasoning undertaken by the Chief Justice, I must say that I am unable to discern any demonstrable error in approach. Nor do I consider the conclusion arrived at by his Honour to be so unreasonable as to itself justify the interference of this court. It follows that no sufficient reason has been established for upsetting the judgment entered below and I would join in an order that the appeal be dismissed with costs.