| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : VAN DER WEGEN -v- O'CALLAGHAN & ORS [2005] WADC 26 CORAM : MARTINO DCJ HEARD : 1619 & 22 NOVEMBER 2004 DELIVERED : 23 FEBRUARY 2005 FILE NO/S : CIV 1228 of 2002 BETWEEN : SALLY VAN DER WEGEN Plaintiff
AND
MICHAEL DENIS O'CALLAGHAN
First Defendant
CGU INSURANCE LIMITED
Second Defendant
MURRAY RIVER NORTH PTY LTD
Third Party
Catchwords: Torts - Negligence - Motor vehicle accident - Contributory negligence - Plaintiff's knowledge that defendant driving under the influence of alcohol - Whether employer also liable - Insurance - Breach of warranty in policy
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Legislation:
Christmas Island Act 2958 (Cth) s 8A, s 8A(2)
Law Reform (Contributory Negligence and Tortfeasers' Contribution) Act 1947 s 7
Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 3C, s 7(5)
Workers' Compensation and Rehabilitation Act 1981 s 93B(3)(a)
Result: Plaintiff guilty of contributory negligence
Damages assessed at $125,719.35 reduced by 25 per cent for contributory negligence
Damages of $94,289.51 awarded
Third party not liable to either defendant Representation:
Counsel:
Plaintiff : Mr D R Clyne
First Defendant : Ms B A Mangan
Second Defendant : Ms B A Mangan
Third Party : Mr R E Keen
Solicitors:
Plaintiff : Edwards Lawyers
First Defendant : Phillips Fox
Second Defendant : Phillips Fox
Third Party : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Zurich Australian Insurance Ltd v Amec Services Pty Ltd, unreported; FCt SCt of WA; Library No 980139; 31 March 1998
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Case(s) also cited:
Annetts v Australian Stations Pty Ltd [2002] HCA 35
Australian Specialist Underwriters v Pierpoint (1986) 4 ANZ Insurance Cases 60702
Australian Specialist Underwriters v Pierpoint (1986) 4 MVR 121
Australian Turf Industries Pty Ltd v Dalet Pty Ltd, unreported; FCt SCt of WA; Library No 98065; 12 November 1998
Barrett v Ministry of Defence [1995] 1 WLR 1217
Brodie v Singleton Shire Council (2001) 206 CLR 512
Casinos Australia International (Christmas Island) Pty Ltd & Ors v Christmas Island Resort Pty Ltd & Anor (1998) WASC 387
Cassidy v State Government Insurance Office [1965] WAR 81
Christmas Island Resort Pty Ltd & Ors v Commonwealth of Australia & Anor, unreported; FCt SCt of WA; Library No 980621; 11 September 1998
Clark v Ryan (1960) 103 CLR 486
Cole v South Tweeds Heads Rugby League Football Club Limited (2004) 78 ALJR 933
Commissioner for Railways v Ireland [1964] NSWR 938
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192
Evans & Sons Ltd v Spritebrand Ltd [1985] 1 WLR 317
Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350
Fluor Daniel Constructors Pty Ltd v Zurich Australian Insurance Ltd [2002] WASCA 218
Forbes v Australian Associated Motor Insurers Ltd and Price (1990) 6 ANZ Insurance Cases 61015
Francis v Lewis [2003] NSWCA 152
Government Insurance Office of NSW v Nowalinski (1985) 2 MVR 142
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Grays Haulage Co Ltd v Arnold [1966] 1 All ER 896
Gregory v Comcare Australia Fed Ct of Aust (1997) 72 FCR 196
Griffith v Kerkemeyer (1976-1977) 139 CLR 161
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Hewitt v Benale (2002) 27 WAR 91
Hewitt v Bonvin [1940] 1 KB 188
Hollis v Vabu Pty Limited (2001) 207 CLR 21
Jones v Dunkel (1959) 101 CLR 298
Joslyn v Berryman & Anor (2003) 214 CLR 552
Mair v Railway Passengers Assurance Co Ltd (1877) 37 LT 356
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Marsden v Unimin Australia Pty Ltd [2004] WASCA 143
McDermott v Australian Associated Motor Insurers Ltd (1993) 2 ANZ Insurance Cases 60536
Modbury Triangle Shopping Centre v Anzil (2000) 75 ALJR 164; [2000] HCA 61
Mulcahy v MVIT (1981) 1 ANZ Insurance Cases 60-453
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Roe v Minister of Health [1954] 2 QB 66
Rowe v McCartney [1976] 2 NSWLR 72
Samson v Aitchison [1912] AC 844
Scott v Davies (2000) 74 ALJR 1410
Smith v Leurs (1945) 70 CLR 256
South Tweed Heads Rugby League Football Club Limited v Cole (2002) 55 NSWLR 113
Stateliner Pty Ltd v Legal & Geneal Assurance Society Ltd (1982) 2 ANZ Insurance Cases 60-455
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Tame v New South Wales (2003) 211 CLR 317
Unsworth v Commissioner for Railways (1958) 101 CLR 73
Van der Sluice v Display Craft Ltd [2002] NSWCA 204
Waverley Municipal Council v Swain (2003) A Tort Rep 81694
West v GIO (1981) 148 CLR 62
Wills v Bell [2004] 1 QdR 296
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] A Tort Rep 81754
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Introduction 1 The plaintiff ("Mrs Van Der Wegen") claims damages for personal injuries she suffered in a motor vehicle accident at Christmas Island on Friday 2 March 2001 when a vehicle driven by the first defendant ("Mr O'Callaghan") in which she was a passenger rolled over. Mrs Van Der Wegen claims that the accident was caused by Mr O'Callaghan's negligent driving. The particulars of negligence include an allegation that Mr O'Callaghan drove while so affected by the consumption of alcohol that he was unable safely to operate the vehicle. 2 By his defence Mr O'Callaghan admits his negligence, including Mrs Van Der Wegen's allegation that he was unable to drive safely by reason of his consumption of alcohol, that his negligent driving was a cause of the accident and that Mrs Van Der Wegen suffered injuries in the accident but contends that her injuries were caused or contributed to by her negligence. Mr O'Callaghan has pleaded seven particulars of negligence that can be summarised as three contentions. They are that Mrs Van Der Wegen was negligent in: 1. Travelling in the vehicle being driven by Mr O'Callaghan when she knew or ought to have known that Mr O'Callaghan was under the influence of alcohol to such an extent as to be incapable of driving safely; 2. Refusing an offer of alternative transport from persons who were not under the influence of alcohol; and 3. Failing to make any or any reasonably forceful request to Mr O'Callaghan to cease driving in a dangerous manner. 3 Mr O'Callaghan denies that Mrs Van Der Wegen suffered any loss or damage and contends that any loss or damage suffered by her were caused by hyperopia in infancy and left eye abnormalities due to previous squint problems or injury. 4 The provisions of the law of Western Australia, including State Acts, are in force in Christmas Island: s 8A Christmas Island Act 1958 (Cth). That law can be amended by an Ordinance made under the Christmas Island Act 1958: s 8A(2). The second defendant ("CGU") is the compulsory liability insurer of motor vehicles on Christmas Island. Apart from that the provisions of Motor Vehicle (Third Party Insurance) Act 1943 (WA) apply on Christmas Island.
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5 The third party ("MRN") is a builder. It was doing building work on Christmas Island in March 2001. Mrs Van Der Wegen and Mr O'Callaghan were part of its workforce. MRN had hired the vehicle Mr O'Callaghan was driving at the time of the accident.
6 Mr O'Callaghan claims against MRN contribution towards his liability to Mrs Van Der Wegen under s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. He claims that MRN owed a duty of care to Mrs Van Der Wegen, that it was in breach of that duty and that the breach caused or contributed to the accident. He alleges that MRN was negligent in failing to prevent vehicles it hired being driven by its employees and subcontractors while under the influence of alcohol when it knew or ought to have known that they were being driven by drivers who had consumed alcohol. 7 Mrs Van Der Wegen made no claim against CGU, yet CGU named itself as a second defendant, made a claim against MRN for the amount of any liability that CGU has to indemnify Mr O'Callaghan in respect of any liability he has to Mrs Van Der Wegen and obtained third party directions that its claim be determined at or immediately after the trial of Mrs Van Der Wegen's action. No party objected to these procedural irregularities, which I raised during the trial. Evidence was led and argument presented on CGU's claim and so it is desirable for me to determine it. The procedural irregularity does not nullify the proceedings commenced by CGU: O 2 Rules of the Supreme Court. 8 CGU's claim against MRN is that MRN was the hirer of the vehicle being driven by Mr O'Callaghan and was therefore an owner of the vehicle under the policy of insurance issued by CGU in respect of the vehicle, that MRN was in breach of a warranty in the policy because the vehicle was driven by Mr O'Callaghan while he was under the influence of intoxicating liquor and that pursuant to the terms of the policy and s 7(5) of the Motor Vehicle (Third Party Insurance) Act 1943 it can recover from MRN any sums it has paid to Mrs Van Der Wegen.
Mrs Van Der Wegen 9 Mrs Van Der Wegen was born on 27 July 1959 in England. She came to Australia when she was six years old. She finished school at the end of first term in the equivalent of year 11. She is married and has two adult children. She has worked as a prison officer for a short period and has done some painting work with her husband but most of her work has been as a cook, something she enjoys. She has worked for most of her
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adult life, returning to work as soon as reasonably possible after the birth of her children. 10 She has worked as a casual cook for MRN for approximately 10 years. Her husband Eddy Van Der Wegen also carries out work for MRN, doing painting and other work on houses. At the time of the accident Mrs Van Der Wegen and her husband carried on business in partnership under the name PET Contracting ("PET"). PET sent invoices to MRN for work done by each of Mr and Mrs Van Der Wegen and MRN paid on those invoices.
Mrs Van Der Wegen's work on Christmas Island 11 Mrs Van Der Wegen commenced work as a cook for members of the MRN workforce on Christmas Island in late February 2001. She had been on the island for approximately a week at the time of the accident. The precise period of her work at Christmas Island was not fixed, but she understood it to be approximately 8 to 12 weeks. 12 At that time Mr and Mrs Van Der Wegen lived in Mandurah. Mr Van Der Wegen did not accompany Mrs Van Der Wegen to Christmas Island. 13 Mrs Van Der Wegen's accommodation at Christmas Island was a two bedroom unit. One bedroom was used as a storeroom. Mrs Van Der Wegen prepared meals for the members of MRN workforce in the kitchen in the unit in which she lived. The unit was part of a block of accommodation used by members of the MRN workforce who collected their meals from that unit and took them outside or to their own accommodation to eat. Mrs Van Der Wegen's job was to prepare three meals a day for the members of the workforce and to do all the associated tasks including ordering the food and cleaning after she had prepared the meals. 14 Mrs Van Der Wegen had not been to Christmas Island before travelling to the island to do work for MRN. Her accommodation was approximately a ten to fifteen minute drive from the main settlement on the island. The main supermarket on the island was near the settlement. MRN had an account at that supermarket and Mrs Van Der Wegen would obtain some of the provisions she needed for the meals she prepared from that store.
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15 Mrs Van Der Wegen did not have her own transport on the island. Mr Stan Best was MRN's supervisor on the island. Mr Best told Mrs Van Der Wegen that if she needed to use a car she could ask him for permission to take a RAV four wheel drive vehicle he used.
MRN and its workforce on Christmas Island 16 All of the individuals involved in the accident and the events leading up to it were temporarily resident on Christmas Island. They were employees of, contractors to or employees of contractors to MRN. The business of MRN is that of a builder in remote areas of Australia. 17 In October 2001 MRN commenced work on a contract to build housing on Christmas Island and to renovate an ablution block on the island. MRN's workforce for this contract was its usual employees and contractors who lived in Western Australia. MRN arranged transport to Christmas Island for those employees and contractors. It also arranged accommodation for them in units that had previously been used by staff at the Christmas Island Casino when that casino was operating. That accommodation was approximately 5 kilometres from the coast. The road from the coast to that accommodation was very steep. There is no public transport on Christmas Island. MRN supplied meals for the members of its workforce at that accommodation. 18 Mr O'Callaghan was a member of the MRN workforce on Christmas Island. He arrived on the island in October 2000. He was employed by Kelbren Pty Ltd, a contractor to MRN. The principal of Kelbren was Mr Glen Scott. Mr O'Callaghan had worked for MRN, either directly or through Kelbren, since approximately 1995. In that period he had also worked for other companies between jobs for MRN. 19 There were three taverns open on the island at the time of the accident - the Christmas Island Club, the Golden Bosun Tavern and Tracks Tavern. The Christmas Island Club and the Golden Bosun Tavern were near the coast. Tracks Tavern was closer to the accommodation provided to MRN staff. If a person knew the way it was possible to walk from the accommodation to Tracks Tavern. It was not practicable to walk to the other taverns. 20 MRN allocated its workforce into teams. It hired utility vehicles on Christmas Island. It was one of those vehicles that Mr O'Callaghan was driving at the time of the accident.
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The accident
21 On the day of the accident Mrs Van Der Wegen accompanied Mr Ross Berry and Mr Dennis Bourne to the Christmas Island Club after she had cleaned up after the evening meal. They travelled to the Christmas Island Club in one of the utilities hired by MRN and arrived at approximately 9 pm. 22 At the Christmas Island Club Mrs Van Der Wegen consumed a Kahlua and milk drink and a soft drink. She spoke to Mr O'Callaghan for approximately half an hour. Her evidence was that during that conversation she saw Mr O'Callaghan consume one spirit drink and that he did not seem to be intoxicated. There was no evidence that Mr O'Callaghan appeared intoxicated at the Christmas Island Club and I accept the evidence of Mrs Van Der Wegen. 23 Mr O'Callaghan said that he was going to go back to the accommodation. Mrs Van Der Wegen and other MRN workers went to a vehicle with him. The vehicle they went to was the vehicle that Mr Berry had driven to the Christmas Island Club. Mr O'Callaghan's evidence was that he asked Mr Berry if he could take the guys home in the vehicle he had driven and "As far as I remember he said yes, fine." [T194] Mr Berry's evidence was that Mr O'Callaghan did not ask him for the use of the vehicle and that Mr Berry had left the keys of the vehicle in the ignition. 24 I prefer the evidence of Mr Berry to that of Mr O'Callaghan on this issue. Mr Berry was not feeling well on the day of the accident. He went to the Christmas Island Club after work. He purchased a beer and found he did not enjoy it. He then told some members of the MRN workforce at the Christmas Island Club that he was returning to the accommodation and that if anyone wanted a lift he could take them, otherwise he would pick them up later. Mr Kayne Leader confirmed that Mr Berry told him that he was not feeling well and that Mr Berry would be skipper that night. I find it unlikely that Mr Berry would have allowed Mr O'Callaghan to take the vehicle he had driven to the Christmas Island Club when Mr Berry had told members of the workforce that he would take them home from the club that evening. 25 Mrs Van Der Wegen sat in the passenger seat beside Mr O'Callaghan. Mr Bourne, Mr Rod Truan and Mr Leon North sat in the back seats. Mr Leader wanted to travel in the tray of the utility but he was not permitted to do so. Mrs Van Der Wegen's evidence was that she told Mr Leader that he could not travel in the tray, Mr O'Callaghan's evidence
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was that he spoke to Mr Leader. I do not think it matters, but in the event that the issue is significant I accept the evidence of both Mrs Van Der Wegen and Mr O'Callaghan and find that they both said at much the same time to Mr Leader that he could not travel in the vehicle's tray. 26 Soon after they left the Christmas Island Club Mr O'Callaghan said that he would take Mrs Van Der Wegen to see Governor's House. The road to Governor's House is steep and narrow and there is a sharp drop on one side. Mrs Van Der Wegen's evidence was that on the way to Governor's House Mr O'Callaghan drove in an erratic manner by swerving the vehicle and that he said to Mr North that it was payback time. Mrs Van Der Wegen hit Mr O'Callaghan on the arm, swore at him and told him to stop it because he was scaring her and that Mr Bourne also reprimanded Mr O'Callaghan who then stopped driving erratically. On the way back from Governor's House Mr O'Callaghan again drove in a similar erratic manner to the way he had previously driven, although not as badly. 27 They arrived at Flying Fish Cove where they saw Mr Peter Kennedy, a member of the MRN workforce. Mr O'Callaghan stopped the vehicle and the male occupants had a conversation with Mr Kennedy. Mrs Van Der Wegen did not hear all of the conversation. However as Mr O'Callaghan drove off after speaking to Mr Kennedy Mrs Van Der Wegen heard the males in the car talking about the presence of a breathalyser on the road to their accommodation. Mr O'Callaghan gave evidence that after speaking to Mr Kennedy he said that he would go the long way to avoid the breathalyser and that Mrs Van Der Wegen was present when he said that. I accept his evidence as to this conversation. 28 Mrs Van Der Wegen offered to drive, but Mr O'Callaghan did not accept that offer. He drove to the Golden Bosun Tavern where Mr O'Callaghan and the other male occupants of the vehicle each had a can of beer and Mrs Van Der Wegen had a can of soft drink. Mr O'Callaghan's evidence was that they did not stay long at the Golden Bosun Tavern and that he did not get to finish his can of beer. I accept that he consumed some, but not all, of a can of beer at the Golden Bosun Tavern. 29 Mrs Van Der Wegen's evidence was that when they left the Golden Bosun Tavern she asked Mr O'Callaghan for the keys to the utility and said that she wanted to drive because he had been "playing silly". Mr O'Callaghan did not give her the keys but said that he would behave. Mr O'Callaghan's evidence was that no-one asked him for the keys.
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I prefer the evidence of Mrs Van Der Wegen who was not under the influence of alcohol. 30 Mr O'Callaghan drove from the Golden Bosun Tavern. When they left the settlement on their way back to the accommodation Mr O'Callaghan drove faster and again told Mr North that it was payback. Mrs Van Der Wegen hit Mr O'Callaghan and swore at him but he kept driving in an erratic manner. He let go of the steering wheel and looked back at Mr North as he was talking to him. Mrs Van Der Wegen screamed because the vehicle was on the wrong side of the road. Mr O'Callaghan lost control of the vehicle and it rolled over. 31 Mr O'Callaghan admitted that he said "payback" to Mr North. It was a joking reference to an occasion when Mr North had driven from the Tracks Tavern and had bogged the vehicle when taking a short cut to their accommodation. Mr O'Callaghan also admitted that Mrs Van Der Wegen said something to him about driving too fast but that he thought he was driving ok. 32 The only other occupant of the vehicle who gave evidence was Mr Bourne. His memory of the night was unclear. He did not contradict Mrs Van Der Wegen. I accept Mrs Van Der Wegen's evidence of what occurred at the Christmas Island Club and the manner of Mr O'Callaghan's driving after they left the club including on the way to and from Governor's House. I prefer her evidence to that of Mr O'Callaghan who was admittedly under the influence of the alcohol when driving and admitted that he was joking with Mr North about payback. 33 I conclude from the evidence of Mrs Van Der Wegen and Mr O'Callaghan that when she left the club Mrs Van Der Wegen did not have reason to believe that Mr O'Callaghan was not capable of driving safely but that when she left the Golden Bosun Tavern she ought to have been aware from the manner of Mr O'Callaghan's driving on the way to and from Governor's House and from the fact that he took a route to avoid a police breathalyser that Mr O'Callaghan's ability to drive safely was impaired by his consumption of alcohol. A reasonable person in her position would have known that Mr O'Callaghan's ability to drive safely was impaired by his consumption of alcohol. 34 Her decision to travel in the vehicle driven by Mr O'Callaghan from the Golden Bosun Tavern constituted failure to take reasonable care for her own safety and contributed to the injuries suffered by her. If she had
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insisted that she drive and refused to travel in the vehicle from the Golden Bosun Tavern unless she was the driver it is likely that Mr O'Callaghan would have permitted her to drive rather than leave her at the tavern. In the unlikely event that he had left her at the tavern Mrs Van Der Wegen could have telephoned other members of the MRN workforce, either at the Christmas Island Club or at their accommodation, and someone would have provided transport back to the accommodation. 35 There was no evidence that Mrs Van Der Wegen refused an offer of alternative transport and I do not consider that Mrs Van Der Wegen could have been more forceful while in the vehicle. 36 In determining the appropriate reduction of her damages by reason of her contributory negligence in travelling in the vehicle driven by Mr O'Callaghan from the Golden Bosun Tavern it is necessary to have regard to both the degree of culpability of each of Mrs Van Der Wegen and Mr O'Callaghan and the relative importance of their acts in causing Mrs Van Der Wegen's injuries. Culpability in this sense means the degree of departure from the standard of reasonable care: Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. The culpability and importance of the acts of Mr O'Callaghan are greater than that of Mrs Van Der Wegen because he was the person driving and his negligent driving caused the accident. However the culpability of Mrs Van Der Wegen and importance of her conduct in agreeing to travel in the vehicle driven by Mr O'Callaghan in the circumstances I have outlined is significant. In my view it was a serious departure from the exercise of reasonable care for her own safety for Mrs Van Der Wegen to agree to travel in a vehicle driven by Mr O'Callaghan after he had demonstrated a willingness to drive in a foolish manner by swerving on the road and had avoided a police breathalyser. The avoidance of the breathalyser clearly indicated to a reasonable person in Mrs Van Der Wegen's position that Mr O'Callaghan knew that by reason of his consumption of alcohol he could not lawfully drive. An appropriate reduction to her damages by reason of her contributory negligence is one quarter.
Injuries, treatment and work capacity 37 Mrs Van Der Wegen lost consciousness in the accident. She regained consciousness soon afterwards. Mr Bourne assisted her to get out of the car through the broken windscreen. Mr North complained that he could not feel his legs. Mr O'Callaghan and Mr Truan walked towards the settlement to get help and Mrs Van Der Wegen and Mr Bourne
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remained with Mr North. Mr North appeared to stop breathing and Mr Bourne administered aid to him. Mrs Van Der Wegen became very distressed because she feared that Mr North might die. A couple in a car stopped and Mrs Van Der Wegen went with them to get help. On the way she spoke to police officers who confirmed that they were going to the accident scene and Mrs Van Der Wegen went to the Christmas Island Hospital. Mr North suffered very serious injuries in the accident. 38 At the hospital Dr Kevin Donovan saw Mrs Van Der Wegen. She had a 1 to 2 cm laceration on the left scalp, abrasions on the left forearm and arm and a bruise on the left forehead. She had pain in the left shoulder and upper arm, right jaw, left ankle and left lower ribs. Dr Donovan sutured the laceration and dressed the abrasions. Mrs Van Der Wegen was admitted to hospital overnight for neurological observation and discharged the next morning. 39 On 9 March 2001 Mrs Van Der Wegen attended at the hospital for an unrelated matter. By that time she had developed a black left eye. Photographs taken at around that time show obvious swelling and discolouration around her left eye. 40 Mrs Van Der Wegen attended at the hospital on 27 April 2001 and reported that pain in her left eye had not settled since the accident. Dr Donovan referred her to the Ophthalmology Clinic at Fremantle Hospital. 41 On 5 May 2001 Mrs Van Der Wegen left Christmas Island and returned to her home in Mandurah. She attended Fremantle Hospital where tests were done on her eye but no operative treatment provided. Mrs Van Der Wegen finds that when she gets tired her left eye twitches annoyingly. She gets headaches and she has noticed that when she is tired her left eyelid droops. Her vision has not been impaired by the injuries suffered in the accident. Mrs Van Der Wegen had squint as a child, which was corrected by surgery when she was 13 years old. She also had another operation in her early 30s. She did not have the problems of the kind she now has and I conclude that they are caused by the accident. 42 In June 2001 Mrs Van Der Wegen's general practitioner referred her to Ms Marie Skinner, psychologist. Mrs Van Der Wegen was sleeping poorly, crying often, was easily startled and had intense fear of travelling in cars. Ms Skinner diagnosed post-traumatic stress disorder and provided psychological counselling to her.
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43 Mrs Van Der Wegen continued to suffer distress and on 30 July 2002 she saw Mr Steven Baily, psychiatrist. Ms Skinner's input had resolved some of her problems but she still suffered significant panic and agoraphobia. Mr Baily diagnosed Mrs Van Der Wegen as suffering from a mixture of depression, panic disorder and residual post-traumatic stress disorder.
44 Mr Van Der Wegen moved to Alice Springs in approximately late 2002. Mrs Van Der Wegen moved there in early 2004. 45 In March 2004 Mr Stephen Cohen, psychologist, saw Mrs Van Der Wegen at the request of her solicitors. Mrs Van Der Wegen informed Mr Cohen that her major difficulty was driving in Western Australia. She did not suffer this difficulty in Alice Springs where she described the driving as "very laid back". She told Mr Cohen that she continues to suffer distress when driving outside of Alice Springs. 46 Mr Cohen has diagnosed Mrs Van Der Wegen as continuing to suffer from post-traumatic stress disorder as a result of the accident. In his opinion she would benefit from treatment in the form of eye movement desensitisation and reprocessing which could change the way Mrs Van Der Wegen views travelling in motor vehicles and might increase her capacity to travel without anxiety. By this treatment psychologists are often able to enable patients to drive again. In Mr Cohen's opinion Mrs Van Der Wegen is likely to require between six and 12 sessions at a cost of approximately $150. In his report dated 29 March 2004 Mr Cohen estimated the overall cost at between $1,200 and $1,600 but his arithmetic seems to be incorrect. I calculate the range as between $900 and $1,800. 47 Mrs Van Der Wegen travelled with her husband by car from Alice Springs to Perth for the trial of this action. She has also travelled by car to Sydney, but flew back because of the distress the trip caused her. I refer later in the reasons to trips Mrs Van Der Wegen has taken for work purposes. 48 Mrs Van Der Wegen has continued to suffer pain in the right breast since the accident. In July 2002 she saw Mr Srisongham Khaming, surgeon, who arranged investigations by ultrasound, mammogram and fine needle aspiration. Mr Khaming felt that her pain was likely to be related to the injuries suffered in the motor vehicle accident. He referred Mrs Van Der Wegen to Fremantle Hospital for another opinion and further management. The exact cause of the breast pain has not been identified. Medical practitioners at Fremantle Hospital have advised
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Mrs Van Der Wegen to have mammograms annually to ensure any carcinoma is identified at an early stage. 49 Mrs Van Der Wegen also has restrictions of movement in her left ankle. She consulted Mr Desmond Williams, orthopaedic surgeon, in March 2004. Mr Williams provided a report dated 22 March 2004 in which he expressed the opinion that Mrs Van Der Wegen suffered a traumatic injury to her ankle which has left her with some restriction in ankle movement. The residual disability in the ankle is mild to moderate. Mr Williams expressed it as being of the order of 10 per cent permanent disability of the leg at knee level and below. The disability limits her ability to walk on irregular ground and to climb stairs and ladders. For that reason Mr Williams considers her work capacity as being limited to lighter sedentary bench or desk work areas. Mr Williams expressed doubts that Mrs Van Der Wegen would be able to return to her pre-accident employment: "She will have a capacity to work as a cook in a flexible work situation but I am not certain that she will cope well with her previous remote cooking activities with large volume requirements. She will need a flexible workstation to cope with any cooking activities." 50 In Mr Williams' opinion Mrs Van Der Wegen would benefit from physiotherapy on her ankle for three to four weeks on two to three occasions over a period of six to 12 months. 51 Mr John Ker, a medical practitioner who practises in rehabilitation medicine saw Mrs Van Der Wegen on 6 March 2002 and provided a report of the same date. In Mr Ker's opinion the primary reason for Mrs Van Der Wegen not working relates to the residual post-traumatic stress disorder she is suffering. As to the future he expressed the opinion that: "I would hope that with continuing resolution of her post-traumatic stress disorder, perhaps over the next six to twelve month, she might be able to return to limited cooking tasks…. I would hope that in time, with the resolution of her post-traumatic stress disorder, she would be able to effectively return to her pre-accident work without any specific exception." 52 Mr Ker quantified Mrs Van Der Wegen's residual pain and stiffness in the left ankle at somewhat less than five per cent impairment of the left lower limb.
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53 Mrs Van Der Wegen attempted to return to work on Sunday 4 March 2001. She found that she could not lift anything due to pain in her left arm and ribs and she was feeling nauseous. In early March 2001 Mrs Van Der Wegen developed tonsillitis and bronchitis and she was not able to work for approximately three weeks. For the remainder of her time on Christmas Island Mrs Van Der Wegen continued to provide meals to the members of the MRN workforce but she found that she needed assistance. Mr Best's wife and Mr Scott's fiancé provided that assistance to her. She returned to Western Australia in May 2001.
54 In September 2001 Mrs Van Der Wegen travelled to Looma, near Fitzroy Crossing, to do a cooking job for MRN. A Mr Shane Nuttall drove her there. He was very considerate and drove slowly. Mrs Van Der Wegen's evidence was that she had great difficulty coping with the job. She became distressed and anxious and she could not stay on her feet for long. Mrs Van Der Wegen has done other short cooking and cleaning jobs for MRN since the accident but has found it difficult to do them. 55 Mrs Van Der Wegen has also travelled by car to these jobs. I accept her evidence that those trips cause her great anxiety and discomfort. 56 Mrs Van Der Wegen's evidence was that she still does not like travelling in motor vehicles and she takes diazepam for travelling. She does not mind travelling in vehicles in Alice Springs but outside of Alice Springs she gets very distressed. She travelled by car from Alice Springs to Perth for the trial of this action. She needed to travel slowly and to have frequent stops because of her anxiety. 57 I accept that Mrs Van Der Wegen is an honest witness who has described accurately the consequences of the accident and I accept her evidence as to those consequences. 58 There is little disagreement between the health professionals and I accept their evidence as to the physical injuries and post-traumatic stress disorder suffered by Mrs Van Der Wegen. Mr Ker was more optimistic than Mr Williams as to Mrs Van Der Wegen's capacity to return to her pre-accident employment. I prefer the opinion of Mr Ker as his area of expertise is rehabilitation medicine. I find that Mrs Van Der Wegen has done her best to return to work since the accident but that as a consequence of the physical injuries and her post-traumatic stress disorder she has not been able to work as much as she did prior to the accident. The treatment recommended by Mr Cohen will take approximately 12 months, thereafter there are good prospects, but no certainty, that she
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will be able to travel freely. In that event she will not have any reduction in her earning capacity.
Economic loss 59 As I have noted Mr and Mrs Van Der Wegen carried on business as partners in PET which charged MRN for work done by them. Tax returns have been prepared for PET but Mrs Van Der Wegen has not filed any tax returns in recent years and PET 's records do not enable me to calculate precisely the income earned by her work before the accident. Counsel for Mrs Van Der Wegen submitted that I should calculate the loss on a global basis. 60 Mrs Van Der Wegen tendered in evidence MRN's Prescribed Payments System payment summaries for the years ended 30 June 1999 and 30 June 2000 for payments to her. I understand these to show how much was earned from her work in those years. The payments were $4,114.30 gross in the year ended 30 June 1999 and $28,276.32 in the year ended 30 June 2000. No further payment summaries were tendered in evidence and it is unclear how much was earned by her in prior or subsequent years. 61 On 21 November 2000 MRN provided a letter stating that Mrs Van Der Wegen earned $800 a week. That letter was provided as Mr and Mrs Van Der Wegen wished to obtain a home loan. It is not accurate. When she did work Mrs Van Den Wegen was paid $114.28 or $142.85 per day plus GST depending upon the number of meals prepared. 62 I estimate Mrs Van Der Wegen's pre-accident earning capacity as being approximately $400 a week after deduction of tax and that her retained capacity is approximately $100 a week so that her loss is $300 a week. I have calculated that loss from 5 May 2001 when Mrs Van Der Wegen left Christmas Island as she continued to work, with some assistance, until that time. I therefore assess her past loss of earning capacity at $59,700. The present value of her loss for the next 12 months is $5,107. I allow $30,000 for loss of future earning capacity to reflect the possibility that the treatment recommended by Mr Cohen will not be successful. I make no separate allowance for loss of superannuation contributions because Mrs Van Der Wegen was paid as a partner in PET and there was no evidence that superannuation contributions were paid or payable for her work. Interest on her past loss at three per cent per annum is $6,835. 63 Special damages were agreed at $1,634.35.
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64 I have referred to the cost of future treatment recommended by Mr Cohen. There is no evidence as to the cost of physiotherapy recommended by Mr Williams but I consider that I should make some allowance for the likelihood that Mrs Van Der Wegen will incur some expense for physiotherapy. There is also likely to be some future expense for analgesics. I allow $2,000 for future treatment costs.
Award for non-pecuniary loss 65 I have summarised in these reasons the injuries suffered by Mrs Van Der Wegen and their consequences. The accident was very distressing and Mrs Van Der Wegen has continued to suffer great distress and significant restriction, particularly in her ability to travel, as a consequence of post-traumatic stress disorder. She has also suffered physical pain and limitations. Her physical condition has improved since the accident but she will be left with the disabilities in her eye and ankle to which I have referred. Her psychiatric condition is likely to improve, but it is likely that she will continue to suffer some level of distress and anxiety. 66 I assess Mrs Van Der Wegen's non-pecuniary loss as being 15 per cent of the most extreme case. Her damages for non-pecuniary loss, calculated in accordance with s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 are $25,550.
Award of damages 67 The total of my assessments of pecuniary and non-pecuniary loss is therefore made up as follows: Non-pecuniary loss $ 25,550.00 Past loss of earning capacity $ 59,700.00 Interest $ 6,835.00 Future loss of earning capacity $ 30,000.00 Special damages $ 1,634.35 Future treatment costs $ 2,000.00 Total $125,719.35
68 I reduce this total by 25% by reason of Mrs Van Der Wegen's contributory negligence. The total award of damages is therefore $94,289.51.
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Mr O'Callaghan's claim against MRN
69 As I have noted in the introduction to these reasons Mr O'Callaghan claims against MRN contribution towards his liability to Mrs Van Der Wegen, alleging that MRN was negligent in failing to prevent vehicles it hired being driven by its employees and subcontractors while under the influence of alcohol when it knew or ought to have known that they were being driven by drivers who had consumed alcohol. 70 He claims that it was the usual practice for members of the MRN workforce to use the vehicles hired by MRN to transport themselves to the Christmas Island Club for alcoholic drinks after work on Friday nights, to use those vehicles to transport themselves back to their accommodation and other locations after they had finished drinking irrespective of whether they were under the influence of alcohol, that MRN was aware of these practices through its director Mr McLarty and its supervisors Mr Best and Mr Berry travelling to and from the Christmas Island Club and attending the Club on Friday nights and observing these practices. 71 He claims that these practices arose out of or were reasonably incidental to the employment or work duties of members of the MRN workforce because there was little else for MRN workers to do on Christmas Island in their leisure time, Christmas Island is a remote location with few facilities and infrastructure, MRN provided accommodation to the members of its workforce, the entertainment and social interaction opportunities on Christmas Island were mostly limited to visiting taverns and it was in MRN's interests to facilitate social interaction and entertainment for its workforce to encourage good morale and stability of its workforce. He also contends that MRN took no proper or effective steps to prevent the vehicles being used in these circumstances by members of the workforce under the influence of alcohol. 72 MRN denies these allegations. It contends that the vehicles were provided for the use of members of the MRN workforce primarily for work purposes and to get to and from the work sites, that MRN permitted members of its workforce to use the vehicles outside of working hours subject to their obtaining prior permission from a supervisor, that a person who had consumed alcohol or might be affected by alcohol was not permitted to drive the vehicles and the person driving the vehicle was required to do so in a responsible manner. MRN claims that these conditions for use of vehicles outside of working hours were communicated to the members of its workforce by MRN's General
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Manager Mr Richard Machell, its site supervisor Mr Best and its director Ian McLarty and were confirmed in a written directive dated 15 January 2001. MRN also claims that it "encouraged the MRN workers to use a skipper system". 73 MRN also contends that if Mrs Van Der Wegen was employed by it or by one of its subcontractors it is a deemed employer of her under the provisions of the Workers' Compensation and Rehabilitation Act 1981 and that she has no entitlement to damages from it because she has not complied with the provisions of s 93D of that Act. This proposition cannot succeed because the Motor Vehicle (Third Party Insurance) Act 1943 applies to Mrs Van Der Wegen's damages as they are "damages in respect of bodily injury to a person directly caused by, or by the driving of, a motor vehicle": s 3A and so Div 2 of Pt IV of the Workers' Compensation and Rehabilitation Act 1981 does not apply to her claim: s 93B(3)(a) Workers' Compensation and Rehabilitation Act 1981.
The relationship between Mrs Van Der Wegen and MRN 74 I have mentioned earlier that Mrs Van Der Wegen carried on business in partnership with her husband and that PET sent invoices to MRN for work done by each of Mr and Mrs Van Der Wegen. This arrangement applied to Mrs Van Der Wegen's work at Christmas Island. PET was paid an hourly rate for her work and tax was deducted under the PPS system, not under the PAYG system that applies to employees. 75 MRN provided accommodation for Mrs Van Der Wegen at Christmas Island. In that accommodation there was a kitchen in which she prepared meals for the members of the MRN workforce. One of the bedrooms in the unit in which she lived was used as a storeroom in which the fridges, freezers and dry goods she needed to prepare meals were stored. She usually commenced working at 6.30 am to provide a cooked breakfast at 8 am. She would clean up after breakfast and then prepare lunch which she provided at 1 pm. She tried to take between 3 pm and 4 pm off and then she would prepare snacks for the members of the workforce when they finished work between 5.30 pm and 6 pm and provide dinner at 7 pm. She cleaned up after dinner and her day finished at around 9 pm. 76 The decision as to what meals she prepared was hers. However if she had provided inadequate meals Mr McLarty would speak to her to ensure that adequate meals were provided. The meals prepared by Mrs Van Der Wegen were always of good quality and Mr McLarty did not have to speak to her about them.
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77 The question of whether a person is an employee or an independent contractor is "whether the degree of independence overall is sufficient to establish that a person is working on his own behalf rather than acting as a servant of another." Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 per Wilson and Dawson JJ at 36. The right to control the worker is the important thing: Zurich Australian Insurance Ltd v Amec Services Pty Ltd, unreported; FCt SCt of WA; Library No 980139; 31 March 1998 and the authorities cited by Ipp J at p 14.
78 Although Mrs Van Der Wegen was a partner in PET which was paid an hourly rate for her services she was not working on her own behalf but was acting as an employee of MRN. Because she was a good worker MRN did not need to direct her as to how she performed her job but if it needed to do so it retained that right. I conclude that Mrs Van Der Wegen was an employee of MRN.
The allocation and use of the vehicles hired by MRN 79 The directive dated 15 January 2001 referred to in MRN's defence to Mr O'Callaghan's claim was a memorandum in the following terms: "MEMO TO ALL MURRAY RIVER NORTH EMPLOYEES AND SUBCONTRACTORS ON CHRISTMAS ISLAND FROM RICHARD MACHELL DATE 15 January, 2001 RE Policy on the use of MRN Vehicles on Christmas Island 1 Vehicles are available for use for work purposes only, in consultation with MRN Site Supervisor. 2 Vehicles may be made available for use in non working hours at the discretion of MRN Site Supervisor, subject to the following conditions- • Approval must be obtained from MRN Site Supervisor prior to proposed use
• Vehicles may not be used by a person who has consumed or may be affected by alcohol
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• Any damage sustained to the vehicles will be repaired and paid for by the borrower, regardless of the reason for the damage.
• Oil, fuel and Water etc are the responsibility of the user to check, as is the condition and use to which vehicles are put. Damage resulting from a failure to check vehicles prior to use will be the responsibility of the borrower.
• Vehicles must be driven in a responsible manner, bearing in mind that they are leased by Murray River North. It is also noted that vehicles may be hired through Soong Car Rental for those persons unable to comply with these requirements." 80 Mr McLarty travelled to Christmas Island when MRN commenced work on the island and he arranged for the hire of vehicles. His evidence was that a vehicle was allocated to each team and the supervisor of each team had the keys for that team's vehicle. If a member of a team wanted to use the vehicle he would seek permission from that team's supervisor. His evidence was also that if workers wanted to use a vehicle to travel to a tavern they had to make arrangements to have driver to drive them back to the accommodation from the tavern. Mr McLarty returned to Western Australia in November 2000 and was not on Christmas Island at the time of the accident. 81 Mr O'Callaghan worked in a team with other Kelbren workers. His evidence was that when he arrived on Christmas Island it was standard practice for vehicles' keys to be left in the vehicles but this caused problems because vehicles would be taken and workers left stranded. For that reason the members of the Kelbren team claimed a vehicle and used only that vehicle. That vehicle was driven by Mr Scott's son. 82 Mr O'Callaghan's evidence was that the memorandum of 15 January 2001 followed an accident in which one of the vehicles was damaged but that there was no change to the way vehicles were allocated or used following the memorandum. 83 The evidence of Mr Bourne, who worked as a tiler, was that he would get a lift to where he was working from whoever could fit him in their vehicle and he usually arranged for that person to take him back to the accommodation at the end of the day. If he wanted to use a vehicle
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after work hours he would ask whoever had responsibility for a team's vehicle if he could use the vehicle. 84 Mr Shane Naylor, a carpenter who worked in the same team as Mr O'Callaghan, gave evidence that if he wished to use a vehicle he would find a vehicle that was not being used. His evidence was imprecise but I understood it to be that he would ask the person whose vehicle it was and if they were not using it he would be permitted to use it. 85 Mr Adam Glossop was also on the same team as Mr O'Callaghan. His evidence was that there was one vehicle per team. If a worker wanted to use another vehicle he would need to ask if he could use it. 86 Mr Berry, who supervised a team on the island, gave evidence that a vehicle was allocated to him. 87 As I have noted Mr McLarty left Christmas Island in November 2000. Neither Mr Machell nor Mr Best were called as witnesses by MRN and no reason was given for the absence of officers of MRN who were referred to in its pleadings. I conclude that their evidence would not have assisted MRN's case. 88 I conclude from the evidence that soon after MRN commenced work on Christmas Island each team had its own vehicle. I find it likely that the allocation of a vehicle to each team was not done in any formal way but that each team made arrangements to ensure that it had a vehicle and ensured that it was available for the team's use.
The provision and use of vehicles after work hours 89 As I have noted it is Mr O'Callaghan's case that the entertainment and social interaction opportunities on Christmas Island were mostly limited to visiting taverns. As Mr O'Callaghan himself acknowledged in cross-examination by counsel for MRN there were other activities on the island such as golf, fishing and swimming. 90 However the conditions at Christmas Island were not easy. They were described as shocking by Mr McLarty. I conclude from Mr McLarty's evidence that MRN allowed the members of the MRN workforce to use vehicles for recreational purposes and that MRN, through Mr McLarty, knew that one of those purposes was to visit taverns.
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Evidence of the consumption of alcohol at other MRN work sites
91 Mr O'Callaghan gave evidence of the consumption of alcohol at MRN work sites other than Christmas Island. 92 Mr O'Callaghan's evidence was that on the sites the consumption of alcohol was regular but not heavy. The following extract is from his evidence in chief: "Did people drink heavily?---I wouldn't say heavily. I mean, it was a regime of every day. Some guys drank more than others. A couple of guys on the crew would drink and not eat. Pretty much some people I never saw eat. As far as heavy drinking goes on my crew's concern, not at all, no." [T 170] 93 Mr O'Callaghan also gave evidence that on their days off from working at these sites members of the MRN workforce would drive to picnic sites, often between 40 to 120 kilometres from the camps. At the picnic sites people, including Mr O'Callaghan, would drink alcohol and drive back to the work sites. 94 Counsel for Mr O'Callaghan also called evidence from Mr Naylor, who has worked at other MRN work sites. His evidence was that after work at the other sites the workers would go for a swim, fish, have a beer and sit around. They would drink beer every day after work. How much beer a worker had would depend upon how thirsty the worker was. 95 This evidence does not prove that there was a practice among members of the MRN workforce at these sites to consume alcohol to excess or to drive while under the influence of alcohol or that MRN was aware of any such practice.
Whether there was a "skipper" system 96 There was a range of evidence from members of the MRN workforce about what arrangements if any existed for a "skipper" or driver who did not drink when members of the workforce took a vehicle to a tavern on Christmas Island. 97 As I have noted it was Mr McLarty's evidence that if workers wanted to use a vehicle to travel to a tavern they had to make arrangements to have a driver to drive them back to the accommodation from the tavern. Mr O'Callaghan denied that any such practice existed. Mr McLarty was unaware of any member of the workforce being charged with drinking and driving on the island prior to the accident. Mr O'Callaghan's evidence
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was that it was the usual practice for members of the team of which he was a member to go to a tavern after work each day and that no arrangements were made for a driver not to drink. 98 Mr Naylor's evidence was that members of the MRN work force would drive vehicles after having consumed alcohol at a tavern. After the memorandum of 15 January 2001 that changed for a short period but then they would still drive. I understand Mr Naylor's evidence to be that he saw people drive MRN vehicles from a tavern after having consumed alcohol. 99 Mr Glossop's evidence was that his team's routine was to go to a tavern after work, have a couple of beers, then go to their accommodation, have dinner and go to bed. After he read the memorandum of 15 January 2001 he tried to abide by it and a person who was not drinking would drive home from the tavern. 100 Mr Bourne's evidence was that members of the MRN work force would drive from the tavern often. 101 Mr Berry's evidence was that when he arrived on the island he was met by Mr McLarty who told him he was not to drive a vehicle after having consumed alcohol. Mr Leader was a member of Mr Berry's team. When the members of his team went to a tavern Mr Leader did not drink on most occasions and would drive. 102 Mr Leader's evidence was that he seldom consumed alcohol and he would often take members of the MRN workforce to a tavern and pick them up when they were wanted to return to their accommodation. Mr Leader also gave evidence that another member of the MRN workforce, Mr Jeffery Steele, acted in a similar way. I have referred earlier to the evidence of Mr Berry and Mr Leader that on the night of the accident Mr Berry was not feeling well and he volunteered to be skipper that night. 103 Mr Steele's evidence was that he did not go to a tavern often and that he was available to pick up members of the MRN workforce if they needed a lift, but that there was no formal skipper system in place. Mr Steele had seen people driving after having consumed alcohol. 104 Mr Darrel Morgan gave evidence that Mr Leader and Mr Steele would act as skippers but he had seen people driving after having consumed alcohol.
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105 I have noted Mr McLarty left Christmas Island in November 2000 and that Mr Machell and Mr Best, who were referred to in MRN's defence to Mr O'Callaghan's statement of claim, were not called as witnesses and I have concluded that those witnesses would not have assisted MRN's case. I find that the witnesses who gave evidence on this topic did so honestly and as accurately as they could recall. However I conclude that Mr O'Callaghan's recollections is the least accurate. It is coloured by his involvement in the accident and its consequences.
106 I find that by its memorandum of 15 January 2001 MRN did require that members of its workforce not drive vehicles while under the influence of alcohol. There were people such as Mr Leader and Mr Steele who could act as drivers. Some members of the MRN workforce, such as Mr Berry and Mr Leader did comply with MRN's direction. Other did not. The members of the Kelbren team of which Mr O'Callaghan was a member did not always comply. MRN did not monitor closely whether its memorandum of 15 January 2001 was complied with. However there was no obvious and blatant disregard of the memorandum even by Mr O'Callaghan's team, as can be seen by Mr Glossop's evidence.
Finding as to Mr O'Callaghan's claim against MRN 107 At the time of the accident Mrs Van Der Wegen and Mr O'Callaghan were living in a remote location and they were travelling from a tavern to their accommodation in a vehicle that MRN had provided to its workforce in the knowledge that it would be used to travel between the accommodation and taverns. Mrs Van Der Wegen was an employee of MRN. However the journey took place outside of work hours and after Mrs Van Der Wegen and Mr O'Callaghan had attended at the Christmas Island Tavern for purely personal recreational purposes. 108 I have concluded that MRN required that members of its workforce not drive hired vehicles when under the influence of alcohol, but that it did not closely monitor compliance with its memorandum of 15 January 2001. However that does not mean that it knew or ought to have known that its vehicles were being driven by members of the workforce while they were under the influence of alcohol. The members of the workforce were adults who were residents of Western Australia. They were reminded of their obligation not to drive while under the influence of alcohol by the memorandum. All adults in Western Australia are well aware of the obligation of persons under the influence of alcohol not to drive and of the dangers of doing so. In my view in those circumstances it was entirely reasonable for MRN to expect that its requirement would be
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complied with and not to take further steps to enforce it. I conclude that MRN was not in breach of any duty of care it owed to Mrs Van Der Wegen at the time of the accident because it did not know and there was no reason why it ought reasonably to have known that its requirement that the drivers of the vehicles it hired not drive them under the influence of alcohol was not complied with.
CGU's claim against MRN 109 As I have noted CGU claims that MRN was in breach of a warranty in the insurance policy CGU issued because the vehicle was driven by Mr O'Callaghan while he was under the influence of intoxicating liquor. By its defence MRN did not admit that CGU was the insurer of the vehicle, but during the trial it admitted the policy. MRN denies that Mr O'Callaghan drove the vehicle while he was under the influence of intoxicating liquor and also contends that if he did drive the vehicle while under the influence of intoxicating liquor it was being so driven without its knowledge or consent. 110 The warranty is that the vehicle : "will not be - … (c) driven by or in charge of [the owner] or any other person …who is under the influence of intoxicating liquor. It shall be a defence to any action in respect of the warranty contained in subclause (c) if the owner proves that the vehicle was so driven or in charge of such other person without his knowledge or consent." 111 I am satisfied that Mr O'Callaghan drove the vehicle while he was under the influence of intoxicating liquor. He admitted that he was in his defence to Mrs Van Der Wegen's statement of claim. Even apart from that admission I draw that conclusion from Mr O'Callaghan's evidence that after completing work at 5 pm on the day of the accident he had a bottle of Crown Lager beer at the work site and then went to the Christmas Island Club where he arrived at approximately 5.30 pm, that he avoided the police breathalyser on road to their accommodation and that he had a beer which he did not finish at the Golden Bosun Tavern, Mrs Van Der Wegen's evidence as to the manner in which he drove and the evidence that a blood sample taken from Mr O'Callaghan at 12.40 am
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on 3 March 2001 was later analysed and shown to contain 0.175 per cent alcohol. However for reasons I have given I have concluded that MRN did not know and there was no reason why it ought reasonably to have known that its requirement that the drivers of the vehicles it hired not drive them under the influence of alcohol was not complied with. I am satisfied that on the night of the accident MRN did not know that Mr O'Callaghan was driving the vehicle under the influence of alcohol and did not consent to him so driving. 112 I dismiss CGU's claim against MRN.
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