Nominal Defendant v Mackenzie & Anor

[2005] HCATrans 844

[2005] HCATrans 844

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S330 of 2005

B e t w e e n -

THE NOMINAL DEFENDANT

Applicant

and

PETER MACKENZIE

First Respondent

AARON BROWN

Second Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 10.28 AM

Copyright in the High Court of Australia

MR R.R. BARTLETT, SC:   If the Court pleases, I appear with my learned friend, MR R.H. WEINSTEIN, for the applicant.  (instructed by Dibbs Abbott Stillman)

MR P.C.B. SEMMLER, QC:   May it please the Court, I appear with my learned friend, MR D.E. GRAHAM, for the first respondent.  (instructed by McClellands)

McHUGH J:   Yes, Mr Bartlett.

MR BARTLETT:   Your Honour, the special leave question here is whether the voluntary consumption of alcohol so as to result in a person being intoxicated and carrying out an obviously negligent and unsafe activity when it is likely that person otherwise would not have done so if sober is a mitigating factor so as to reduce culpability when determining what is just and equitable in the assessment of the amount of contributory negligence.  In other words, what if any relevance is there in assessing the amount of contributory negligence that the plaintiff decided to carry out the negligent or unsafe acts only after voluntarily becoming intoxicated? 

Your Honour, although this Court has recently looked at the question of contributory negligence and the effect of alcohol in Joslyn v Berryman as to determining whether contributory negligence has been suffered, this raises a different point.  This raises the question of the effect of somebody’s actions being brought about by them voluntarily consuming alcohol.  Is that a mitigating factor, which the New South Wales Court of Appeal found ultimately was in reducing the finding of the judge at nisi prius, Judge Cooper, when the court otherwise said ‑ ‑ ‑

McHUGH J:   It was a pretty extraordinary result the judge reached, was it not?  He found the plaintiff 100 per cent liable for contributory negligence so, notwithstanding the hypothesis that your client was guilty of negligence, nevertheless, the plaintiff was 100 per cent negligent.  It would be an extraordinary case that would get you to the 100 per cent barrier.  The Court of Appeal said 80 per cent.

MR BARTLETT:   Yes, well your Honour, this was because of the provision of section 5 ‑ ‑ ‑

McHUGH J:   Yes, I know.

MR BARTLETT:   As for the Civil Liability Act where the test is not, as such, the measuring of the culpability.  The test is whether in the circumstances a plaintiff should be afforded relief.  Now, Judge Cooper, who had been a very experienced judge, found in all his days that the actions – if ever there was a case where it was inevitable that an accident would occur of this type, this was it.

What the findings were on this basis is that the plaintiff who was a 33‑year‑old shearer, a Mr Brown, who he knew for some 16 years, had been drinking all day, that at the end of the day they had decided to go for a ride on his Harley‑Davidson which he kept a short distance away at his home which was unregistered and uninsured because the plaintiff had lost his licence for two years. 

Now, that was done in circumstances where the finding of his Honour was that if not affected by alcohol, there is no way that the plaintiff would have embarked on such a course of action because the dangers were overwhelmingly apparent as far as the plaintiff was aware, the plaintiff well knew that he never had a licence to drive a motorcycle and had not therefore been tested in respect of his proficiency to drive ‑ ‑ ‑

McHUGH J:   Yes but the case is concerned with the application of section 5S of the Civil Liability Act of the New South Wales Parliament and the Court has to make a determination whether it is just and equitable to determine a reduction of 100 per cent.  I mean, it is a question of fact and degree.  No principles other than applying that indeterminate expression, “just and equitable”. 

MR BARTLETT:   Only to this extent, your Honour ‑ ‑ ‑

McHUGH J:   It has to be applied in all the circumstances of the case.  What point of general principle is involved in it?

MR BARTLETT:   Insofar as the Court of Appeal found that insofar as “the judge’s basis for his assessment of 100 per cent” contributory negligence, he did not think that it can be held that the judge’s exercise of the discretion miscarried.  This is at page 104 of the application book at paragraph 99 of the judgment of the Court of Appeal.  But, where the court intervened was on the basis that because the plaintiff had not determined to carry out those acts before he commenced drinking, then that in some way reduced the culpability when determining what was just and equitable.  In other words ‑ ‑ ‑

McHUGH J:   But the approach the court used was in accordance, was it not, with cases like McPherson, Miraflores and Morton v Knight?

MR BARTLETT:   Your Honour, that is where the question comes.  It is a situation whereby who put himself into that position.  It was the plaintiff by his voluntary consumption of alcohol.  The acts that he did are what caused his injuries.  It is not the alcohol per se. 

McHUGH J:   No, but it is a remarkable proposition.  Your client is intoxicated.  He is in breach of the duty he owes to the plaintiff.  His negligence causes the plaintiff’s injury and nevertheless you say that the plaintiff should get nothing simply because he was drunk.

MR BARTLETT:   Your Honour, the rationale behind the decision was not that Mr Brown was not negligent, but that is the whole point of the provision of section ‑ ‑ ‑

McHUGH J:   No, the judge said that an accident was inevitable, I know, but it was inevitable also from the point of view of the intoxicated driver, looking at it from the reasonable person standard.  There may be some case where you could get a finding of 100 per cent contributory negligence but my imagination does not extend to it. 

MR BARTLETT:   Well, the legislation imagination does, your Honour.

McHUGH J:   I know.   The fact that the legislature seems to think that there can be may only indicate that the legislature does not understand the law of negligence and particularly the law of contributory negligence.

MR BARTLETT:   That may or may not be the case, your Honour, but this was one of these cases where otherwise it is up near the top of the range.  The plaintiff, of course, was in control of the situation.  Now, the point at issue is, and this was the determination made by the Court of Appeal, was because prior to becoming intoxicated he had no intent to carry out these acts and this is the sole reason given, that because the decision was made after he became intoxicated, that in some way reduces his culpability in circumstances where he put himself in that position by voluntarily drinking that amount of alcohol.  Now, our point is this.  If that be the case and if that be applicable, then that would apply universally in relation to considerations as to what is just and equitable in determining contributory negligence.

McHUGH J:   Yes, but it is a curious conception to think that it is just and equitable that one person shall bear the whole burden when the other person is also guilty of negligence and that person’s negligence has caused the plaintiff’s injury and not only that but the plaintiff’s negligence is driving or riding with an intoxicated driver.

I mean, one can think perhaps of other cases where it might be possible to say that the contributory negligence of the plaintiff is so bad that it is just and equitable at 100 per cent.  I must say I just cannot envisage one but maybe they exist, but in a case of a drunken driver and a drunken passenger, it is a large proposition to say that the plaintiff should share 100 per cent of the blame because his contributory negligence is taking a lift with the intoxicated driver.  What about the intoxicated driver being on the road?

MR BARTLETT:   It was more than that, of course.  He provided the means if it was not – he was in control of the situation.  It was his bike, he obtained the equipment.

CALLINAN J:   I do not think too many people had too much control of the situation.

MR BARTLETT:   No, but there is no dispute they were all markedly affected by alcohol but not to the extent that he did not know what he was doing.  The difference was, because he was markedly affected by alcohol, he was willing to assume risks which he otherwise would not have done if he was sober.  The Court of Appeal appears to be saying that if he had the intention of carrying out such activities prior to him becoming affected by alcohol then there would be no problem apportioning 100 per cent.  Why…..reduce it is because he did not make that determination until after he was markedly affected by alcohol.

Now, what we say as a matter of principle, if that be correct then it is a situation whereby you are taking the subjective element in circumstances where contributory negligence is looking at a reasonable person in the position of the plaintiff, particularly in circumstances such as this where who was the party responsible for putting himself in that position?  It was him.  We cannot see any difference as to why there should be a reduction because the determination was made after he was affected by alcohol.  Now, that as a proposition ‑ ‑ ‑

McHUGH J:   It is a proposition of fact.  What the Court has to do is to apply the statute.  It has to apply the statutory expression “just and equitable”.  There are no principles other than applying the statute and as we said earlier, in the earlier cases, these raise questions of fact.  They are not binding on anybody.  It is the statute that binds, not the expressions that appear in judgments concerning the meaning of the statute when they are factual expressions or factual synonyms.

MR BARTLETT:   What we say is that statement and the rationale of the judgment of the Court of Appeal is one of mixing principles of putting in a subjective element when the test, not only at common law, but under the statute, is one of objectivity, looking at a reasonable person in the position of the plaintiff.

CALLINAN J:   The expression “contributory negligence” in section 5S may well be a misnomer but it is the expression used so that the whole of the division does contemplate contributory negligence, expressly not volenti and your argument sounds suspiciously like a volenti argument to me. 

MR BARTLETT:   Well, under the relevant legislation, the Motor Accidents Act, volenti as such is still a matter of contributory negligence. 

CALLINAN J:   Well, there in terms it is a bit hard to reconcile.  That is the statute and that is what we have to deal with.

MR BARTLETT:   In terms of ‑ ‑ ‑

CALLINAN J:   The legislature does not use the expression “volenti” in section 5S.  It has used the words “contributory negligence”. 

MR BARTLETT:   But in effect, this is what the plaintiff was doing at the time.  He assumed the risks of carrying out this obviously dangerous activity in circumstances where the result as found was inevitable when he had control of the situation.  This is why the judge made the findings that he did, where he found in such circumstances that, as he said, if ever there was a case where 5S would apply, this would be it.

Now, the Court of Appeal said on that basis, of itself, there was no error on the part of the judge except for this fact.  It was not deliberate negligence on the part of the plaintiff.  Now, we say, that is a mixing of the principles.  It is putting a subjective element in respect of the test which is a reasonable person in the position of the plaintiff ‑ ‑ ‑

McHUGH J:   But it is a question of what is just and equitable.

MR BARTLETT:   Yes, of course.

McHUGH J:   That means the Court has to look at all the circumstances of the case.

MR BARTLETT:   Yes.

McHUGH J:   That has always been the way that expression has been used. 

MR BARTLETT:   But, your Honours, we ask rhetorically, is the plaintiff less culpable or responsible for his injuries by determining to carry out these obvious and dangerous activities after he has been affected by alcohol ‑ ‑ ‑

McHUGH J:   Yes, but that only looks at it from one aspect.  It is a question of looking at both parties’ activities, not really the plaintiff.  When

you come to the question of apportionment, you have to look at both parties’ responsibility for the accident. 

MR BARTLETT:   I do not think I can take it any further.

McHUGH J:   Mr Semmler, your cross-appeal is conditional on the grant of this, is it not?

MR SEMMLER:   It is, your Honour, yes.

McHUGH J:   We need not hear you, Mr Semmler.

The Court is of the view that the questions raised in this case are matters of fact and degree.  There is no point of principle involved in the case and the appeal would have insufficient prospects of success to warrant the grant of leave to appeal. 

Accordingly, the application is dismissed with costs.

AT 10.45 AM THE MATTER WAS CONCLUDED