Talbot-Butt v Holloway

[1991] HCATrans 48

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll0 of 1990

B e t w e e n -

ASHLEY TALBOT-BUTT

Applicant

and

BETTY IRENE HOLLOWAY

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 2.22 PM

Copyright in the High Court of Australia

Talbot-Butt 1 15/2/91

MR D.B. MILNE, QC: If the Court pleases, I appear with ~y

learned junior, MR R.C. TONNER, for the applica~t.

(instructed by G.M. Meadows)

MR C.A. EVATT: I appear for the respondent. (instructed by

Teakle Ormsby & Associates)

MASON CJ:  Yes, Mr Milne?

MR MILNE:  Your Honours, this raises a simple and very short point and it is this: how do you judge the degrees

of the breach of duty of the ordinary reasonable

man as between a plaintiff and a defendant, both of

whom were found to be guilty of negligence?

It arose, as Your Honours know, in this way:

the plaintiff was a pedestrian lady. The defendant

was the driver of a motor vehicle. A collision

took place in William Street up near the King's

Cross tunnell, and you seeing judges here, you will

all know where that is. It is a six-lane highway.

She, it was found on the facts, was well but

adversely affected by alcohol when the accident

happened sometime in the early evening of

September.

What happened was that the trial judge found

that the defendant was negligent and found that the

plaintiff was negligent and he said, "She is one-

third to blame; he is two-thirds to blame".	It
went to the Court of Appeal.	Two of the judges,

while they both thought that had they been the

judge at first instance might have come to a

different conclusion, it was not so wildly wide of

the mark that they would alter it on appeal.

MASON CJ: "Wholly erroneous" is the expression, is it not?

MR MILNE:  "Wholly erroneous", Your Honour, yes. The third

judge thought it was. The third judge thought it

departed so significantly from the standard of care of an ordinary person that he thought that she, the plaintiff, should bear the greater proportion of

the blame.

MASON CJ: So, he was able to be so precise about it that he

got to 55 per cent responsibility.

MR MILNE:  He got to 55 per cent, Your Honour. Now,

Your Honour, I know what is going to be said to me.

You are all going to say to me, "Well, look, you
can't be too exact about these things", and of
course you cannot be but 33 1/3 per cent and

66 per cent is a bit wide of the mark, in my

submission.

MASON CJ: Wholly wide of the mark?

Talbot-Butt 2 15/2/91

~ MILNE: It is wholly wide of the marl<. If it had ::ee:--.

50/50, then I do not think I would have the==~~~;~

to stand up in front of Your Honour Justice ~as2:--..

the Chief Justice, and say it is but it is not,

is two-thirds and one-third.

It is a serious matter because if this sort::

rule is applicable to a person who has imbibed

somewhat too freely, which is a self-induced state,

it likewise applies to a situation of somebody~~=

is a drug taker or a drug user or any other person

who, by his or her own act, creates that situat1~:--..
And it differs, of course, from somebody who

suffers from some fraility not of their own mal<i~;.

So, it does raise the point as to what standard 1 -~

apply to an intoxicated plaintiff.

There are many cases, of course, about

intoxicated defendants as we have heard here this

morning but there are remarkably few cases about

intoxicated plaintiffs. There are one or two; sc~e

in the State courts; none that I am aware of in

this Court; and one or two in England. But,

Your Honours, I do not want to labour the point,

the issue is clearly there: what is the correct

principle that you apply to a plaintiff who has, by

her own actions, induced a state to do the thing

that she did?

The authorities are in the judgments.

Your Honours have no doubt seen them. I relied

upon some English authorities which said that where

you find that sort of situation the person who is

intoxicated by their own act must necessarily bear

the greater proportion because it is a wrongdoing

of their own volition.

MASON CJ:  In other words, to be equated with a person who

is not intoxicated and does that.

MR MILNE:  Your Honour, there seems to be an element in it

all of saying, "Well, look, you've been somewhat

unwise about what you did this afternoon.

Therefore you must bear a little bit more of the
burden."	You read that between the lines in some

of the judgments.

MASON CJ:  But I suppose, Mr Milne, if you are a motorist

driving up to this locality that you have called

our minds, if not our recollection to, you would

normally be taking special care, would you not,

that somebody in this condition was not likely to

bob in front of you?

MR MILNE:  You would be, Your Honour, if you were in the

earlier part of that street but once you get up

past those - - -

Talbot-Butt 3 15/2/91

MASON CJ:  You know it better than I do, Mr Milne.

MR MILNE: Well, no, Your Honour, I am not too sure that I

do know it better than you. Certainly, I do not

know it as well now as I what I used to know it

long ago. It is right up next to the tunnel where

she went to go across.

MASON CJ: Yes, I appreciate that.

MR MILNE:  Not down where the ordinary traffic is. I

rhetorically ask, in answer to Your Honour

the Chief Justice, "Would one really expect in that
precise position to find any person, let alone an

intoxicated person?" It is somewhat doubtful

whether you would. But, in any event, that is all

a matter of evidence and always a matter that can

be gone on should I be successful in this

application for special leave.

The only point that I put is the point of

saying this, what I have already said, what the

Court of Appeal has really done is to say, "Well,

look, it's all right for people to be affected by

alcohol to this degree and wander upon streets, and

they do not get any punishment put upon them."

Now, I do not use the word "punishment" in a

punitive sense at all but they do not have to bear

the proportion.

The dissenting judge in this case, I might say

to Your Honours as you will see, took a very

strenuous opposite view about this. He took the

view that it was not fair to expect motorists at

that place to find intoxicated ladies and he took

the view that she ought to bear a far greater

proportion.

Your Honours, like Mr Hughes, I do not want

Your Honours to criticize me for the brevity of my

argument.

MASON CJ:

Not at all, we would only commend you for

brevity, Mr Milne.

MR MILNE:  But that is the point. I have put the point and

I ask for special leave, Your Honour?

MASON CJ:  Thank you. The Court need not trouble you,

Mr Evatt.

Despite the arguments presented by Mr Milne on

behalf of the applicant, the Court is not persuaded

that there was any error of principle on the part

of the Court of Appeal. Nor are we persuaded that

the apportionment of responsibility made by the

Talbot-Butt 4 15/2/91

primary judge was wholly erroneous.	The
application is therefore refused.

MR EVATT:	Could I have costs, Your Honour?
MASON CJ:	You do not resist an order for costs, Mr Milne?
MR MILNE:	No, Your Honour, I do not.
MASON CJ:	The application is refused with costs.

AT 2.31 PM THE MATTER WAS ADJOURNED SINE DIE

Talbot-Butt 15/2/91