Norris v Mercantile Mutual Insurance (Australia) Limited

[1991] TASSC 136

Serial No B22/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Norris v Mercantile Mutual Insurance (Australia) Limited [1991] TASSC 136; B22/1991

PARTIES:  NORRIS
  v
  MERCANTILE MUTUAL INSURANCE
  (AUSTRALIA) LIMITED

FILE NO/S:  346/1989
DELIVERED ON:  20 May 1991
JUDGMENT OF:  Underwood J
CATCHWORDS:

Insurance—Motor Vehicle Policy—Exclusion clause—"Driving under the influence of liquor".

Judgment Number:  B22/1991
Number of paragraphs:  17

Serial No B22/1991
List "B"
File No 346/1989

NORRIS v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED

REASONS FOR JUDGMENT  UNDERWOOD J

20 May 1991

1. The only issue for determination in these proceedings is whether, at the relevant time, the plaintiff was driving his motor vehicle while "under the influence of intoxicating liquor". Proof of this fact would entitle the defendant to rely upon exclusion clause 2(c) in a policy of motor vehicle insurance made between the parties and thereby avoid liability to pay for damage to property agreed in the sum of $10,808. The defendant accepts that it carries the onus of proof.

1. At about 4pm on Christmas Eve 1988, the plaintiff was involved in a motor vehicle accident on the Tasman Highway just north of Orford. The plaintiff was driving his Torana sedan uphill, round a gradual right hand bend towards Triabunna. Just before reaching the junction with a road which leads to the municipal tip, the plaintiff saw a Holden Commodore sedan approaching in the opposite direction. There was nothing remarkable about the manner in which the Commodore was being driven. The plaintiff moved to the left side of the carriage way but, by an error of judgment, his rear side wheels went off the bitumen and onto the gravel. The plaintiff then lost control of his vehicle, which went back onto the bitumen, across to its incorrect side and collided with the oncoming vehicle which was being driven by Mr Keal. Mr Keal and his two sons, who were in the car with him, sustained minor injuries. The plaintiff suffered substantial injuries including fractures to a femur and the pelvis and lacerations to the head and body.

1. There was no dispute that the plaintiff had consumed alcohol before the accident. He said in evidence that, after visiting friends in the north of the State, he returned to his home town Triabunna about 1.30pm or 2pm on 24 December 1988. He went straight to the Spring Bay Hotel. Not surprisingly, as it was Christmas Eve, the hotel was very busy. The plaintiff said in evidence–in–chief that he drank two stubbies of beer and then his mother came in to speak to him about some family arrangements for the following day. This visit to the hotel was confirmed by the plaintiff's mother. The plaintiff said that he bought his mother a drink and she also confirmed this. The plaintiff said that he then drank an eight ounce beer and decided to leave the hotel. In cross–examination he said that "it could possibly be three stubbies" as well as the eight ounce beer. The plaintiff said that his intention was to go home and have a shower. He said that he thought he left the hotel about 3pm. His mother said that she "felt in her own mind" the plaintiff left the hotel when she did. Before he left the hotel, the plaintiff bought a carton of stubbies to be drunk on Christmas Day. The publican, Mr Eltham, remembered this transaction because the plaintiff asked for and was given credit.

1. The plaintiff said that after he left the hotel with the carton of stubbies he returned home, showered, changed his clothes and loaded his car with the beer, some wine and other items for Christmas Day. He then left his home to visit a sister who lived in Triabunna. She was not home. The plaintiff said that he then went to his mother's house in Orford but she was not home either. He said that he then set off to return to Triabunna stopping only to fill his car with petrol. It was on this journey that the accident happened.

1. The plaintiff's mother was on the scene of the accident soon after it had happened. She said that after leaving the hotel she went to visit some tenants in a house she owned in Triabunna and then called upon her daughter who also lived in Triabunna. She said that she did not stay too long at either place as the Christmas pork was cooking in her oven at home. She was on her way back home when she came upon the accident.

1. The plaintiff estimated a period of about one hour between his last drink and the accident. The plaintiff's mother estimated about ¾ of an hour between her leaving the hotel and coming upon the accident. In his claim form lodged with the defendant, the plaintiff stated that approximately half and hour passed between his last drink and the occurrence of the accident. I find that something in the order of 30 to 45 minutes elapsed between the time the plaintiff left the Spring Bay Hotel and the time he hit Mr Keal's car.

1. The only evidence of how much alcohol the plaintiff actually consumed whilst he was at the hotel came from the plaintiff. I was told without objection from the Bar table that if the plaintiff consumed two stubbies and one eight ounce beer that would be a total of 34 ounces of beer and if the plaintiff consumed three stubbies and one eight ounce beer that would be a total of 47 ounces of beer. Of course, the ultimate question is not how much beer the plaintiff consumed but whether he was driving while under the influence of intoxicating liquor 30 to 45 minutes after his last drink. I adopt as appropriate the following passage from the judgment of Nettlefold J. in M Fish and B Potter Pty Ltd v GRE Insurance Ltd B18/1983.

"A person is 'under the influence of intoxicating liquor' if he has taken such a quantity of intoxicating liquor as disturbs the balance of his mind or the quiet, calm intelligent exercise of his faculties. (Mair v Railway Passengers Assurance Co Ltd (1877) 37 LT 356; Louden v British Merchants Insurance Co (1961) 1 WLR 798; Cassidy v State Government Insurance Office [1965] WAR 81; Cory v Club Motor Insurance [1969] VR 189)."

1. The amount of alcohol consumed is a fact relevant to the fact in issue. The fact in issue is whether the balance of the plaintiff's mind or the quiet calm intelligent exercise by him of his faculties, including that of judgment, were disturbed by the consumption of intoxicating liquor.

1. The plaintiff's mother said that when she was with the plaintiff in the hotel she considered his state of sobriety "really good because being a mother you wouldn't leave them with the car keys if you thought otherwise". Mr Eltham said that at the time the plaintiff bought the carton of stubbies "I wouldn't have said he was intoxicated". However, I place little weight on Mr Eltham's evidence concerning the plaintiff's sobriety because he made it quite clear that he was very busy that afternoon and did not have time to carefully note the plaintiff's condition. Further, I gained the impression that by intoxication, Mr Eltham was referring to obvious signs of intoxication such as staggering gait and marked slurred speech.

1. Mr Pike, a volunteer ambulance driver who lived at Triabunna, arrived at the scene in his own motor vehicle before the ambulance and the local medical practitioner. He went to the plaintiff who was trapped in his vehicle and obviously in a great deal of pain. He noted that the plaintiff's breath smelt of liquor. The vehicle smelt of liquor, no doubt from the beer spilt from the stubbies which had been smashed in the accident. Mr Pike assessed the plaintiff as conscious and orientated. The plaintiff recognised Mr Pike whom he had known from school days. According to Mr Pike, the plaintiff said either that he had had a few or that he had had a couple of stubbies. Mr Pike did not question the plaintiff further with respect to the amount of alcohol he had consumed. Asked his opinion about the plaintiff's sobriety, Mr Pike said that he noticed nothing other than the plaintiff's admission and the smell of liquor on his breath which would have led him to believe that the plaintiff had been drinking alcohol. Asked about slurred speech, Mr Pike said "I don't believe he did. No, I don't recall." He went on to make it plain that his preoccupation was with the care of the plaintiff particularly having regard to the pain he was in and he did not directly address the question of whether the plaintiff was exhibiting signs of being under the influence of alcohol.

1. The local doctor from Triabunna, Dr Berkhout, arrived on the scene and took charge of the plaintiff's management, his removal from the vehicle, emergency medical treatment and despatch by ambulance first to the Triabunna Medical Centre and then to the Royal Hobart Hospital. Dr Berkhout was a most impressive witness. His evidence was given in a careful, concise and thoughtful manner, responsive to the questions put to him. He had no interest in supporting either party in this litigation. Dr Berkhout graduated from the University of Western Australia with his medical degree in 1981 and at the time of the accident had been in private practice at Triabunna for three years. At the time he gave evidence he was employed in Melbourne in accident emergency medicine.

1. On arrival at the scene one of Dr Berkhout's immediate concerns was to establish whether the plaintiff had sustained a head injury. The extent of the plaintiff's observable injuries and the damage to the vehicles led Dr Berkhout to believe that at some stage the plaintiff had lost consciousness although by the time he got there the plaintiff was conscious, and responding in an appropriate manner to questions asked. He smelt alcohol on the plaintiff's breath and asked him if he had been drinking.

"What was his answer to your question? ... He said, or words to the effect: 'Yes, I'm pissed as a fart.'

Did you follow up with any other question about his drinking? ... I asked him how much he'd been drinking and he said: 'Quite a bit.' At that stage I felt that was reasonable evidence to support that he had been drinking and therefore it was difficult to assess him with respect to a head injury and therefore the important next step was to extract him from the vehicle, immobilise him appropriately and transfer him for further care to the Royal Hobart Hospital.

Yes. Did you have the opportunity of observing any physical signs on, or about his body that helped you form any conclusion as to his drinking? ... His speech was slurred. I could smell alcohol on him, on his breath and other than that it was difficult – he was obviously distressed. He was in pain and so the other observations were more confusing, but those two things in particular I noted."

1. Despite extensive and skilful cross–examination by Mr Wood, counsel for the plaintiff, Dr Berkhout adhered to the opinion he expressed that the plaintiff was considerably intoxicated.

1. Dr Berkhout's evidence that the plaintiff said that he had had quite a few and was "as pissed as a fart" is of course, direct evidence of the ultimate question of fact in this litigation. Dr Berkhout was pressed with the proposition that concussion may have produced an admission that was not in fact true and the signs that Dr Berkhout attributed to the consumption of alcohol. Dr Berkhout thought that the former was an unlikely proposition and with respect to the latter, whilst conceding that signs of a post–concussive state and signs of consumption of alcohol can be the same, he maintained that on all the material available to him he was firmly of the opinion that the signs he observed were due principally to an excessive consumption of alcohol.

1. I accept the evidence of Dr Berkhout that the plaintiff admitted, in effect, that he was substantially affected by alcohol and that that self assessment was accurate. I also accept Dr Berkhout's opinion as accurate, that the plaintiff was considerably intoxicated. The weight of this evidence is such that it clearly outweighs the opinions expressed by the plaintiff's mother and Mr Eltham. The plaintiff's error of judgment which led to the accident is consistent with Dr Berkhout's evidence but, I hasten to add, would not by itself entitle the court to draw an inference that the plaintiff was then driving while under the influence of liquor.

1. For completeness I note that Mr Keal and Senior Constable Boyes also gave evidence but none of that evidence was directly probative of the issue for determination.

1. I conclude that the defendant has discharged the onus of proof and that it is more probable than not that, at the time the damage was occasioned, the plaintiff was driving while under the influence of intoxicating liquor. Accordingly, the defendant is not liable to the plaintiff under the contract of motor vehicle insurance. There will be judgment for the defendant against the plaintiff.