Wheeler v Macdonald

[2008] NSWSC 567

CITATION:	Wheeler v Macdonald [2008] NSWSC 567
HEARING DATE(S):	2 - 4 June 2008
JUDGMENT DATE :	12 June 2008
JUDGMENT OF:	Malpass AsJ
DECISION:	Culpability of the plaintiff should be 65%.
CATCHWORDS:	COMMON LAW - negligence - prima facie inference of negligence - contributory negligence and apportionment - driving after drinking - driver holds an L-plate - passenger holds a P-plate
LEGISLATION CITED:	Civil Liabilities Act 2002
CATEGORY:	Principal judgment
CASES CITED:	Cook v Cook (1986) 162 CLR 376 Jones v Dunkel (1958) 101 CLR 298 Joslyn v Berryman (2003) 214 CLR 552 Macerola v Government Insurance Office (NSW) (1990) 11 MVR 575 McNeilly v Imbree [2007] NSWCA 156 Metrolink Victoria Pty Ltd v Auspro Logistics Pty Ltd [2008] VSC 23 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Robens v Fernandez [2007] NSWSC 1013 Robens v Fernandez [2007] NSWSC 1309
PARTIES:	Patrick Louie Wheeler (Plaintiff) Billie Macdonald (Defendant)
FILE NUMBER(S):	SC 20009/07
COUNSEL:	AJ Lidden SC / PN Khandhar (Plaintiff) J Poulos QC / J Ryan (Defendant)
SOLICITORS:	Stacks / Taree (Plaintiff) Moray & Agnew (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Thursday 12 June 2008

20009/07 Patrick Louie Wheeler v Billie Macdonald

JUDGMENT

1 HIS HONOUR: The plaintiff was born on 11 December 1985. He ceased his schooling in year 11 and commenced a carpentry apprenticeship.

2 On 23 April 2005, he suffered personal injury in a motor vehicle accident. He was then 19 years of age and held a green provisional licence. The injuries were extensive and included head injury.

3 He was a passenger in his own vehicle. At the time of the accident, the vehicle was being driven by the defendant. She was then just over 16 years of age and still at school. The defendant pleaded guilty to an offence of dangerous driving occasioning grievous bodily harm.

4 The plaintiff has no recollection of the accident. His last memory prior to the accident was earlier during the day when he had been shopping at K-Mart. His first memory of the accident took place about two weeks after it (when he was in hospital). Emergency Department records note that he was “Heavily intoxicated”.

5 In November 2005, he recommenced his apprenticeship course. He completed that aspect of the apprenticeship in March 2006. At the time of the accident, he had been employed as an apprentice carpenter. Subsequent to the accident, his employer no longer needed the services of an apprentice and the employment came to an end.

6 He was given employment with a builder. He lasted for three weeks. He was unable to cope with the physical work. Thereafter he was off work until August 2006.

7 Under the disability apprenticeship scheme, he commenced an apprenticeship as a cabinet-maker. He expects to complete that apprenticeship in August 2008. He has been employed by a maker of kitchens. He continues in that employment. His present aim is to stay with that employment. He has hopes of starting up his own business in the future.

8 The accident has left him with considerable physical restrictions as well as mental problems of short-term memory and concentration. It has affected not only his capacity to work but also his capacity to perform domestic tasks, carry on past hobbies and sporting activities.

9 The plaintiff has brought proceedings in this Court claiming damages founded on alleged negligence. The proceedings are defended. The defendant denies negligence and alleges contributory negligence (see Amended Defence filed in court).

10 The proceedings were fixed for a hearing to last five days commencing on 2 June 2008. On the first day of the hearing, the court was informed that a consensus had been reached as to quantum. The trial then proceeded on the question of liability only. It concluded on 4 June 2008.

11 The plaintiff’s case in chief was comprised of oral evidence from the plaintiff and documentary material (including photographs, inter alia, of Green Point Road and the plaintiff’s vehicle).

12 The defendant called her mother (Jennifer Macdonald), Ryan James Golby (“Golby”), the defendant herself, Adam Lee Reeves (“Reeves”) and Associate Professor Starmer.

13 In reply, the plaintiff called Professor White.

14 The police investigation seemed to be a desultory affair. It was said during the hearing that an officer involved in the investigation had died. A significant absence from the material placed before the court was evidence of the usual type thrown up by a police investigation.

15 The court was informed that both Mathew Hagarty (“Hagarty”) and Christie Hawes (“Hawes”) were present outside the court during the hearing and that the parties had conferred with each of them. Neither was called by either party.

16 The accident took place on Green Point Road, Green Point (probably about 10.30 pm) in a built up area with a speed limit of 50 kph. Green Point is a small settlement near Forster. At the time of the accident the plaintiff, Hagarty, Reeves and Golby were friends. Hawes was the girlfriend of Golby. Hawes and the defendant were friends. Hawes was 16 or 17 years of age and both were students at Tuncurry Senior School. Hagarty lived with his family in Green Point Road (“the home”). There was a straight stretch of roadway (which allowed two cars to pass) in front of the home. The accident occurred near the Hagarty home.

17 The plaintiff was then the owner of an automatic 1991 V6 Commodore. As a consequence of the accident, this vehicle was very badly damaged (it came to be in two parts). The vehicle left the roadway and collided with a telegraph pole. In opening the case for the plaintiff, his senior counsel said:

“She then collided with a stationary car and a fence and ended up many, many, many metres up the road.” (T 2)

18 The defendant was also injured in the accident.

19 Prior to and on the day of the accident, the six persons had assembled at the home in Green Point Road and alcohol was consumed. The purpose of the occasion was “to have a few friends over for a drink” (Exhibit 2) and largely it took place in the lounge room of the home. The evidence suggests that it was a small room. The Hagarty parents were not present. The matter of the duration of the gathering has uncertainty and the sparse evidence on the matter has inconsistencies. On the Golby version, it may have been in the order of four and a half hours. It was at the gathering that the plaintiff and the defendant met each other.

20 According to Golby in evidence-in-chief, the plaintiff had been drinking beers and maybe rum and the defendant had been drinking Vodka Cruisers.

21 According to Golby, the plaintiff and the defendant left the home after about 10.30 pm. About ten minutes later, they heard the noise of the plaintiff’s car (“it sounded like they were going pretty quick” T 67). This noise caused those then at the home to jump up and they then heard the noise of the crash.

22 Golby gave, during his evidence-in-chief, an initial impression of having a limited recollection on certain matters. He had made a police statement some months after the accident (on 6 September 2005). On the application of the defendant, he was given leave to look at the statement for the purposes of reviving his memory. He said that it had assisted his recollection “a little bit” (T 74). Ultimately, the statement was tendered as Exhibit 2. It presented a different picture in some respects as to what had been offered earlier in evidence-in-chief. The statement contained the following:

“3. About 6.00 pm on Saturday the 23rd April, 2005, I attended a mates place, Matthew HAGARTY in Green Point Drive, Green Point. I don’t know what house number it is though. The idea was just to have a few friends over for a drink. We talked about all getting together around about midday. Paddie (Patrick WHEELER), Matt, Christie my girlfriend and I drove to Matt’s place from Forster Keys.
4. We all started to have a few drinks together with some dinner. Around about 7.00 pm Billie MACDONALD arrived. I knew of Billie, she’s a friend of my girlfriend but that’s the first time we were actually formally introduced. We were all drinking in the loungeroom. I remember seeing Billie drinking Cruisers, rum, butter scotch snaps and tequila. Paddie was mainly drinking beer, but he had some rum and butterscotch snaps as well. During the course of the night I saw Paddie and Billie talking together. While they were talking together they were also drinking.
5. Around about 10.30 pm I heard Billie and Patrick talking about going for a drive. Both Paddie and Billie were pretty drunk at this stage. I could tell Paddie was pretty drunk, he gets loud and annoying when he is drunk. Billie was pretty drunk as well, she became more relaxed and more talkative. I tried to talk them out of it, cause I knew both had been drinking and it wasn’t worth it.
6. Christie and I had a bit of an argument, and Christie went in to talk with Matt. That’s when I started talking to Billie and Paddie. I then said, to Paddie, ‘Don’t be stupid, you’re a dickhead, you’ve both had drinks, I would never let someone who has been drinking drive my car’. Both Billie and Paddie said, ‘It’s only Green Point, I’ll only drive slow’. I then left the room and spoke with Matt. I then told Matt something. It’s at this stage that I saw and heard Paddies car drive out, through Matt’s bedroom window.
7. A short time later Adam arrived. Adam then told me and Matt something. I could hear Paddies car coming down the road. It was revving hard, just sounded like a Commodore driving fast. Adam, Matt and I went to go out the front door, we didn’t even get to the front door when we hear the crash. We all ran down to where Matt’s car had crashed. It was horrific, the car was in half, power lines across the road. Christie and I went up to the car, I saw Billie she was still seated in the front drivers seat. She was in shock, she didn’t know what was going on. I couldn’t seek Paddie in the car. I walked between the gap, between the two sections of car. I saw Paddie laying in the carport, he looked dead. A few people started to gather and I was pushed away as there was live power lines. I rang the ambulance. A short time later the Ambulance and Police turned up.”

23 During cross-examination, Golby said that he recalled hearing the defendant asking the plaintiff to drive his vehicle and that he declined on a number of occasions. He acceded to a proposition that was put to him by counsel for the plaintiff (“It would be correct to say that she grabbed hold of the keys of his car while they were together at the party” T 83). He also acceded to a further proposition also put to him by counsel for the plaintiff (“And it appeared to you did it not that in the conversation they had been having eventually there had become an agreement reached between the two of them that she would drive his car slowly and only in the local area of Green Point” T 84).

24 The defendant and her mother gave largely similar evidence as to her driving experience. Her mother had given her tuition on a small manual 1985 – 1986 vehicle. The driving experience was in the order of about 10 - 11 hours of driving in areas “where it was not quite so busy” (T 53).

25 She said that her mother drove her to the house. She arrived about 4.00 – 4.30 pm. When she arrived, Hawes, Golby, the plaintiff and Hagarty were already there. There was alcohol at the house. She and Hagarty went to the corner shop and bought two cans of rum and coke (375 ml). She drank both of them. She also drank two Vodka Cruisers and had one drink of Tequila (which the plaintiff had given to her). The Tequila was her last drink. Although she had consumed alcohol on previous occasions, she was not an experienced drinker.

26 She said that after drinking the Vodka Cruisers and the rum that she started to become very intoxicated. At the time of the driving she described her driving as being moderately affected. She did not have anything to eat at the home.

27 She observed the plaintiff drinking but was not sure what amount had been consumed by him. She spoke mainly to Hawes. However she did speak to the plaintiff and at that time they were about a metre to a metre and a half apart.

28 She claims to not have a great memory of the driving. She had problems reaching the pedals and putting the vehicle into gear. She recalls leaving the house and reversing the car out of the driveway. The plaintiff put the vehicle into gear. She recalls driving towards the shops and stopping while the plaintiff spoke to a friend (“the incident”). The friend refused the offer of a lift. Thereafter, they kept on driving. Otherwise, she had little recollection of the driving (save for being told to go faster – or words to that effect). Her memory is of waking up after the accident in the plaintiff’s vehicle. She does not remember how she came to be driving. She had no recollection of grabbing the keys to the plaintiff’s vehicle.

29 During cross-examination, the defendant conceded that her head had struck the steering wheel in the accident and that she had advanced that injury to the police as a reason for her lack of recollection. She agreed that she had also told the police that the accident had happened on a dirt road and that the handbrake had been put on by the plaintiff. She agreed that she had no idea of the speed of the vehicle during the period that it was driven by her. She made many concessions as to lack of recollection and poorness of recollection.

30 She maintained that she had a clear recollection of being told to go faster. I shall now look at certain evidence on this matter in more detail.

31 The matter was first mentioned by her by way of a misunderstanding of the question put to her by her senior counsel (T 99). The intention of the question was to elicit an answer as to first recollection following the accident.

32 It was raised again in the context of the stage during the driving when the car started to go faster. She gave this evidence:

“Q. Just before that happened, did Pat say something to you?
A. Yes.

Q. What did he say?
A. ‘Go faster, go faster, you can go faster’.

Q. What is your next recollection after him saying that?
A. Nothing, I just remember waking up.” (T 102)

33 In cross-examination she gave the following evidence:

“Q. Now, the conversation ‘go faster, go faster, you can go faster’, you have told us that after that you remember nothing. That’s so isn’t it?
A. Yes.” (T 104)

34 At the commencement of her re-examination, she gave the following evidence:

“Q. Do you remember you were asked a question about when it was in the drive that the words ‘you can go fast’ or words to that effect were spoken?
A. Yes.

Q. You've spoken about stopping to talk to somebody on the roadway?
A. Yes.

Q. Was it before that or after that?
A. It was before.” (T 115)

35 After a short adjournment had been taken, the matter was again revisited. She returned to the witness box and gave evidence that she had been sick, anxious and confused at the time of giving the earlier evidence in re-examination and gave a correction of it. She gave this further evidence:

“Q. You say you're not confused now?
A. I'm not confused now and I understand what you were trying to ask.

…

Q. What were you confused about?
A. I was confused as to what you said my last memory was at - before - like stopping in the middle of the road, talk to the guy, or was it after that I said, ‘Go faster, go faster. You can go faster.’

Q. Whatever be the state of your mind when you answered the question, what is the truth? What was the sequence of events?
A. Leaving the house, driving on the road a little further, stopping, talking to the guy, and then continuing on driving, and then him saying, ‘Go faster.’” (T 119)

36 Reeves turned out to be the friend spoken to in the incident. He was living in the Green Park area (about a fifteen minute walk away from the home). The incident took place as he was walking to the home and when he was about 50 metres from it. He declined the exhortations of the plaintiff to jump in and to go for a drive with them. Instead, he continued walking to the home. The accident happened shortly after he reached it.

37 There was inconsistency between what was first said in his evidence-in-chief and what had been earlier said in a police statement (made in about August 2005). By leave, he was cross-examined on this material. The transcript records the following:

“Q. Would it be true to say you recognised the driver as Billie Macdonald?
A. Yes.

Q. That she was in your sister's year at school?
A. I think so.

Q. Is it true to say you introduced yourself to her?
A. I said, ‘How are you going?’

Q. Then Patrick said, ‘Jump in, jump in’?
A. Mmm-hmm.

Q. Did you say, ‘What are you doing?’
A. I told him he was stupid and asked him why.

Q. Just follow this, please: ‘Patrick said, 'We are just going for a drive'’?
A. Mmm-hmm.

Q. Is it true to say that you could tell that he had a few drinks?
A. Yep.

Q. Is it true to say that he was really loud?
A. Yeah.

Q. And he kept saying, ‘Jump in, jump in’?
A. He was loud when he was saying ‘Jump in’, yes.

Q. And you said, ‘No, youse are stupid. You don't need to go for a drive’, is that true?
A. Yep.

Q. Patrick kept saying, 'Jump in, jump in'?
A. Yes.

Q. And that's when Billie said, 'Let's just go’?
A. Yes, that's true.

Q. Is that what in fact happened?
A. Yeah.”
…

Q. Did you form an opinion before you said, ‘Youse are stupid’?
A. No.

Q. You just said it?
A. I just said, ‘You're stupid’, yep.

Q. What happened then after you had this conversation?
A. They drove off and I proceeded to Matt's house.

Q. At what speeds did they drive off?
A. They drove off relatively calmly, nothing out of the ordinary.

Q. And by calmly, you mean?
A. Like just normal takeoff.

Q Which way were they going?
A. Into Green Point.

Q. And in the direction of that arrow that you've marked on the exhibit?
A. Yep.

Q. You walked the 50 metres to Matt's place?
A. Yes.

Q. And you had a conversation with somebody there?
A. Yeah.

Q. Do you remember what those conversations were?
A. No. No.

Q. And then did you hear something?
A. Yeah, I heard a car coming.

Q. Where were you when you heard the car coming?
A. In Matt Hegarty's lounge room.

Q. How far away did the car seem to be when you first heard it?
A. It was a fair distance, a little distance up the road, yeah.

Q. Can you tell us what your best estimate was?
A. Say 500 metres.

Q. And you heard the sound of a car. What did it sound like?
A. It sounded like a V8 Supercar.

Q. A V8 Supercar?
A. Mm.

Q. And you are a driver I take it,
A. Yeah, I drive.

Q. What kind of car did you drive at that time?
A. I think I had a Holden Rodeo at that time.

Q. Could you describe the sound of the car?
A. Like a V8 Supercar - loud.

Q. I drive a Morris Minor. A V8 Supercar is a foreign thing to me. It may be to his Honour. How does that sound?
A. Like a loud big car, with a loud motor.

Q. What did you do when you heard that noise?
A. We jumped up and ran inside.

Q. Why?
A. Just to stop them driving around.

Q. To stop them. Why did you want to do that?
A. Because from the sound of the car—

…

Q. Did you all run out?
A. Yeah, we did.

Q. What happened then?
A. Before we got outside the car had already crashed.” (T 130 – 132)

38 Associate Professor Starmer and Professor White have expertise in the area of pharmacology. A report from Associate Professor Starmer was received as Exhibit 5. Two reports from Professor White were received as Exhibit D. A joint statement from both experts was admitted as Exhibit 6. This evidence was sought because a blood sample from the defendant had become tainted.

39 The contents of the joint statement are as follows:

“There are 4 main issues addressed in the two expert reports:
Blood alcohol concentration
We agree that the defendant’s blood alcohol concentration would have been approximately 0.11%.
Knowledge about the amount of alcohol consumed
There is some lack of clarity concerning the degree to which the plaintiff was in the company of the defendant during the course of the evening and therefore the amount of alcohol consumption by the defendant that was witnessed by the plaintiff. We agree that if the plaintiff had witnessed most of the defendant’s drinking and had done so whilst not himself intoxicated, then he should have been aware of the defendant’s level of intoxication. However, if he had witnessed only a limited amount of the defendant’s drinking, then he is unlikely to have been aware of the defendant’s level of intoxication based on her consumption.
Defendant’s manifestation of intoxication
We recognise that the defendant is likely to have been an inexperienced drinker, but also that individuals differ in the extent to which they manifest signs of intoxication. We agree that the defendant may have shown visible signs of intoxication, but this is not necessarily the case.
Plaintiff’s intoxication
Evidence on the relation between blood alcohol concentration and judgement of intoxication relates only to sober observers. However, there are statements suggesting that the plaintiff was showing visible signs of intoxication. A level of alcohol that produced outward signs of intoxication in the plaintiff would also have produced very marked cognitive impairment, including impaired judgement. Thus, if the plaintiff was sufficiently intoxicated so as to exhibit such signs, then his ability to judge the defendant’s level of intoxication would have been markedly impaired.”

40 In addition to the reports and the joint statement, both experts gave oral evidence (by way of evidence-in-chief and cross-examination).

41 At the conclusion of the evidence, it seemed that the only real issue between the parties was one of apportionment. However, during submissions, the defendant maintained the view that negligence remained in issue. The plaintiff has not resisted a finding of contributory negligence. He has taken the approach that the only real issue is that of apportionment.

42 The parties have relied on written submissions. The written material has been supplemented by oral argument.

43 In the defendant’s written submissions, the following appears:

“25. In this case primary negligence is in issue.
26. The dispute on primary negligence is not concerned with the existence of a duty of care (see for example McNeilly v Imbree [2007] NSWCA 156). The issue on primary liability is concerned with the scope of the duty of care and whether, in the peculiar circumstances that obtained in the instant case, it had been breached.
27. On 8 February 2008 the High Court granted special leave in Imbree v McNeilly. The matter was heard on 15 May 2008 and judgment is presently reserved. Special leave was granted in order for the Court to reconsider the applicability of Cook v Cook (1986) 162 CLR 376. In Cook the joint judgment of Mason, Wilson, Deane and Dawson JJ is hinged on the relationship of proximity. This approach has attracted criticism, however, as McHugh J noted in Joslyn v Berryman (2003) 214 CLR 552 at 564, Cook (and Gala v Preston ) are authorities for the proposition that, in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger. Further, in Cook , Brennan J based his decision on foreseeability rather than proximity and his Honour said at 393:
‘The care which is expected of the driver in those circumstances is the care to be expected of a person of ordinary prudence who is disabled by the unusual condition of which the passenger has knowledge.’
28. In the instant case there were a number of unusual conditions and exceptional circumstances: on the Defendant’s part, they relate mainly to her intoxication and inexperience. On the Plaintiff’s part, they relate to the obviousness of the aforementioned but also his urging the Defendant to drive faster. These matters are relevant to the scope of the Defendant’s duty.
29. Having regard to the foregoing submissions, as to the content of the duty of care, it is submitted that in all the circumstances the Defendant has not been shown to have breached that duty.”

44 In the circumstances of this case, it seems to me that a finding of negligence is inevitable and that it is unnecessary to deal with the matters raised by the defendant.

45 The evidence demonstrates that immediately prior to the accident the vehicle was being driven by the defendant and travelling fast, in excess of the speed limit. It left the road and collided, inter alia, with a telegraph pole. It travelled some considerable further distance before coming to a stop. The damage was so extensive that the vehicle was reduced to two parts.

46 There is authority for the approach that in such circumstances a prima facie inference of negligence on the part of the driver may be drawn. The basis for this approach is that it is not usual in the ordinary course of human affairs for such an accident to take place in the absence of negligence (Mummery vIrvings Pty Ltd (1956) 96 CLR 99; Macerola v Government Insurance Office (NSW) (1990) 11 MVR 575; Metrolink Victoria Pty Ltd v Auspro Logistics Pty Ltd [2008] VSC 23). There is no evidence to support a contrary conclusion and the defendant has not advanced any other explanation for the accident. This situation is more than bolstered by the admission arising from the defendant’s guilty plea.

47 There seems to be no issue between the parties that a finding of contributory negligence should be made. If that not be the case, I am satisfied that the plaintiff has been guilty of contributory negligence. In addressing this issue, the court has been referred to Robens v Fernandez [2007] NSWSC 1013 and [2007] NSWSC 1309 by both parties. In that case, reference was made to the relevant authorities on contributory negligence and apportionment and the relevant principles were enunciated.

48 The task of the court is made difficult by reason of the lack of memory had by both participants in the driving escapade. The plaintiff presents as having no recollection whatsoever of the relevant events.

49 The defendant during her evidence acceded to the proposition that she had a poor recollection of the events (“not a lot” T 99) and in particular a limited recollection of the driving.

50 There has been an attack on the reliability of her evidence. It was said, inter alia, that nightmares or flashbacks had intruded into her recollection. Attention was drawn to what may have been a slip of the tongue in the second of the two answers in re-examination set forth earlier in paragraph 35. It was not reintroduced in the third answer therein.

51 She has conceded that aspects of her evidence were erroneous (such as seeing P plates on the plaintiff’s vehicle). She erroneously told the police of, inter alia, a dirt road. There were inconsistencies (such as in the “go faster” evidence). An explanation was offered for that particular inconsistency (she was sick, anxious and confused). While she demonstrated a readiness to grant concessions, she remained firm on that particular evidence.

52 Both Golby and Reeve demonstrated a reluctance to give evidence that may have been perceived by them as being adverse to the interests of the plaintiff. Cross-examination was redolent with evidence elicited by way of a leading question. In respect of both of them, where there is conflict, I prefer what was said to the police as opposed to what was initially offered in evidence-in-chief or later adduced during cross-examination.

53 Both parties have argued an entitlement to the drawing of Jones v Dunkel (1958) 101 CLR 298 inferences. The submissions arise out of the failure to call either Hagarty or Hawes, both of whom were available to give evidence.

54 There is evidence that the plaintiff, Golby and Hagarty were schoolfriends and that they still remain friends (although, lately, he has not seen Golby as often). There is also evidence that Golby and Hawes continue to live together.

55 I am not satisfied that there is a basis for drawing any inference against the defendant. However, it seems to me that a basis has been demonstrated for drawing an inference against the plaintiff. Accordingly, I infer that the evidence of both Hagarty and Hawes would not have assisted the plaintiff.

56 It would seem that those advising the plaintiff took a tactical decision to adduce a bare minimum of evidence on the issue of negligence, reliance being placed on the defendant’s guilty plea. The evidence that Hagarty and Hawes may have been able to give had a real potential for materiality on the question of contributory negligence and there was the opportunity to adduce any such evidence in the course of reply.

57 The authorities establish that the test of contributory negligence is an objective one and the issue is whether an ordinary reasonable sober person would realise their risk of injury (Joslyn v Berryman (2003) 214 CLR 552 at 564 and 566 – 567).

58 It is common ground that provisions of the Civil Liability Act 2002 have application in this case (inter alia, ss 5F, 5G and 5S). Although the parties drew the attention of the court to these provisions, no specific submission was made in respect of any of them.

59 At the time the driving took place, both the plaintiff and the defendant were significantly affected by the consumption of intoxicating liquor. In the case of the plaintiff, this is demonstrated, inter alia, by what was said to the police by other witnesses and the hospital records. In the case of the defendant this is demonstrated, inter alia, by her own evidence, that of the experts and what was said by her mother as to the defendant’s breath after the accident. Whilst the defendant was an inexperienced drinker, the plaintiff had been drinking for some years prior to the accident.

60 The plaintiff does not challenge the evidence she gave as to her consumption of intoxicating liquor. It may be that it understates the degree of her intoxication. There was other evidence that she may have also consumed butterscotch Schnapps.

61 Both of them knew that a driver with an L-plate should only have been driving with a fully licensed driver and that to do otherwise was contrary to law. Whilst both of them were young, the plaintiff was older and more experienced.

62 The plaintiff had the opportunity to observe both the defendant’s consumption of intoxicating liquor and the impact that it had upon her. It seems to me that a person satisfying the relevant description should have observed both her consumption of intoxicating liquor and the impairment of her capacity by reason of its consumption (it was observed by Golby).

63 Also, I consider that such a person should have had the opportunity to make himself aware of her age and driving status. The defendant was of youthful appearance. Whether or not the plaintiff knew of the plaintiff’s age, that she was a schoolgirl and that she held an L-plate only remains a mystery. In the circumstances of this case, there is a likelihood that he may have had knowledge. If he did not, I consider that he should have made enquiry concerning her age and licensee status before he assented to her driving his vehicle.

64 He voluntarily allowed her to drive his vehicle in these circumstances. In so doing, he exposed himself to the risk of injury. It was a risk that could be foreseen by a person satisfying the relevant description.

65 There is conflicting evidence as to the times spent at the home by both the plaintiff and the defendant. The plaintiff may have been absent for some time (perhaps about half an hour). Putting these matters aside, on any view, both of them were together in a small room for many hours during which all participants continued to drink. Indeed, the plaintiff gave the defendant her last drink.

66 The evidence demonstrates that there was conversation between the plaintiff and the defendant, during the time spent at the home. They were in conversation prior to their departure to go on the driving escapade. Golby was a participant in conversation concerning the driving of the vehicle. In that conversation, he made it known to both of them that they had been drinking and that it would be stupid to allow her to drive his car. By that time, Golby had made the observation that both of them were “pretty drunk” (T 75). He gave them a warning that was ignored by both of them.

67 The plaintiff was the owner of the vehicle. He had the ultimate control over the situation. He could have refused to allow the driving to take place. The evidence as to the grabbing of the keys has unsatisfactory aspects. It was evidence that was elicited in a leading fashion and received little exploration. The circumstances in which it took place are largely unknown. If it did happen, it seems to me it was a matter that the plaintiff should not have allowed to take place. If the evidence on this matter is to be accepted, it seems that the grabbing of the keys was but a prelude to the reaching of a consensus between the parties that allowed the defendant to drive the plaintiff’s vehicle with him as a passenger.

68 There is uncertainty as to the duration of the driving. Largely, what happened during it prior to the acceleration and accident is another unknown. It may have been in the order of about ten minutes. It was probably restricted to the Green Point area and having proximity to the home.

69 The plaintiff could have brought a halt to the driving at any time. The plaintiff and the defendant could have alighted from the vehicle and walked back to the home. This did not happen. Instead, he chose to exhort her to breach any consensus reached between them as to how the vehicle should be driven and to drive faster. She was a very inexperienced driver of an unfamiliar, powerful vehicle. She was in an impaired state. The exhortation placed her in a position which was beyond her capacity and experience.

70 The reliability of the “go faster” evidence is a matter which was in dispute. After a consideration of the detail of this evidence and the circumstances in which it was given, I have come to the view that this evidence should be treated as being reliable. It has a consistency with what happened. There seems to be sequence of events which may have followed a period of slow and uneventful driving (there was an earlier lack of noise and Reeves observed them driving off calmly). The events were the exhortation to drive faster by the plaintiff, the loud engine noise and the consequent increase in speed which was shortly followed by the accident. It was not an invention. From what was said by senior counsel, at the commencement of the hearing, it was information that had been conveyed by the defendant to the police. Further, the inconsistency is explained.

71 In the circumstances, I turn to the remaining question of the apportionment.

72 In the performance of this statutory exercise, the court has regard to what was said in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. It is an exercise requiring the court to have regard to the respective culpability of the parties (not moral blameworthiness). At 493 – 494, in a joint judgment, the High Court observed as follows:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

73 In my view, in the circumstances of this case the culpability of the plaintiff significantly outweighs that of the defendant.

74 On this question, no figure is advanced on behalf of the defendant. However, senior counsel has informed the court that his personal view is that it should be in excess of 50% and as high as 75%. Counsel for the plaintiff takes a vastly different view. It is said on behalf of the plaintiff that it should be in the order of 15% to 20%.

75 In my view, for the reasons that have been given, the culpability of the plaintiff should be 65%.

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