Factual matters
8 The trial judge found that the respondent, who was aged 18 at the time of the accident, did not have a driver's licence. On 17 May 2002 he went to the Home Tavern hotel in Wagga Wagga, arriving at about 8 pm. He entered a pool competition but was eliminated in the first round. He then remained at the hotel playing in a social competition. He played over 20 games of pool. During the time he was at the hotel he consumed one beer and a number of Coca-Cola drinks.
9 The respondent became aware of Mr Wilson in the pool room at about 9 pm. Mr Wilson told the respondent that he had been at soccer training at Junee. The respondent and Mr Wilson played about five games of pool.
10 The trial judge found that although the respondent had seen Mr Wilson at various times during the evening, he was not aware of him after he had left the pool table. He only observed Mr Wilson to drink one middy and one schooner of beer. The respondent had been present with Mr Wilson on previous occasions when alcohol was available and his observations were that he did "not drink much." Mr Wilson had told the respondent that he was suffering from diabetes and that "it was never very good if he had too much alcohol." The respondent had never seen Mr Wilson adversely affected by alcohol.
11 At some stage during the evening, the trial judge believed it to be between 10.30 or 11 pm, Mr Wilson indicated that he would give the respondent a lift home when they had ceased playing pool. The respondent and others left the hotel at the same time. The trial judge found that this was about 2.20 am. They chatted for a while outside the premises. The group included Allan Riach, who had arranged the pool competition, Mr Wilson and two other persons, Ryan Schofield and David Chapman. The respondent did not observe anything abnormal about Mr Wilson's behaviour. The trial judge found that to the observation of the respondent Mr Wilson "did not exhibit any signs of aggression, he did not have any trouble with his standing up or walking."
12 The group chatted outside the hotel for about 20 minutes and then walked to Mr Wilson's car. The respondent did not observe any abnormality in Mr Wilson's walking. He did not observe Mr Wilson to be having difficulty in accessing his vehicle. He gave evidence that "he believed at that stage Mr Wilson was capable of driving."
13 The trial judge provided the following account of the subsequent events:
"At that stage Mr Wilson had indicated he would drop the plaintiff off first at Donnelly Street, and then drop Mr Riach at Turvey Park. Mr Wilson lived at Henschke Avenue in Tolland. Mr Wilson then did a u-turn, intending to deliver the plaintiff and others to their homes. However, Mr Wilson said to the person David Chapman, 'where do you live?' and was told that he lived out at Forest Hill, near the airport. Mr Wilson fatefully then uttered the words 'we'd better drop you off first so as not to backtrack.'
Mr Wilson then did a second u-turn, retraced the path his vehicle had followed. He came to Fitzmaurice Street, did a right hand turn at that street, he then proceeded along that street towards the vicinity of this courthouse.
The vehicle was stopped at 'Romanos' where the man David Chapman spoke to Ryan Schofield, who was then at some wine bar, and was talking to some girls. The vehicle then continued. It made its way through Tarcutta Street, under the railway bridge in Wagga Wagga and came to the intersection of Hammond Street; a left turn in Hammond Street took one on the road that eventually led out of Wagga and would intersect with the Hume Highway. Up until that time the plaintiff had observed that Mr Wilson was driving normally: Mr Wilson had negotiated roundabouts without any apparent difficulty. The speed limit in Tarcutta Street for instance was sixty kilometres an hour and Mr Wilson appeared to be only travelling slightly above that in the hours around two-thirty to 3 am.
When the vehicle turned into Hammond Avenue there was nothing about the driving of Mr Wilson that caused concern at that stage. The vehicle satisfactorily negotiated the roundabout. Shortly after the intersection of Kooringal Road and Hammond Avenue, Mr Wilson was seen to 'go through the gears' and speed up. His vehicle was reasonably new, a Magna sedan with a 3.5 litre engine. It was obviously a manual. Mr Wilson accelerated. The plaintiff told him 'slow fucking down', but Mr Wilson did not do so. The vehicle was estimated by the plaintiff to be doing about 140 kilometres per hour. Eventually Mr Riach said that Mr Wilson should 'slow the fuck down'. That apparently provoked Mr Wilson in starting to change up through the gears. In the course of doing that, and whilst on a bend, Mr Wilson lost control of the vehicle. To use the words of the plaintiff, 'it locked up' and continued in a straight line rather than taking the somewhat gentle right hand bend. The vehicle left the bitumen, it went through gravel into a paddock, through a fence and had a substantial impact with a large tree. It continued on a distance until rest."
14 The trial judge accepted the respondent's evidence. He said that "he presented as a young man who was seeking to be honest and frank with the court." The respondent said in evidence that had he suspected that Mr Wilson was not fit to drive, he would not have got in a vehicle with him.
15 Mr Chapman made a statement to police which was tendered in evidence. He was at a friend's place until about 9.00 when Mr Wilson turned up. The three friends decided to go to the Home Hotel for some drinks and play pool.
16 Mr Chapman drank with Mr Wilson and another person. He said that Mr Wilson drank middies of Carlton beer. He said he did not think Mr Wilson had many beers. Mr Chapman was injured in the accident and had no memory of actually leaving the hotel or getting into the car.
17 Mr Riach was aged thirty-one years at the time. He also made a statement to the police. He recalls meeting Mr Wilson early in the evening and then again at about 2.30 am. He accepted a lift home with Mr Wilson.
18 Mr Riach said that he himself was not intoxicated when he left the hotel. He said that he had not seen Mr Wilson drink anything that night. In relation to Mr Wilson's physical state at the time he said:
"He had had a couple of drinks but he was walking and talking fine. I wasn't really taking much notice of him but if I had to say I would say that he was slightly affected by something. In the time I have known Brett I have seen him drink alcohol many times. I know how he acts and talks when he has been drinking. If I thought he was drunk that night I would not have got in the car with him."
19 No challenge was made to this evidence.
20 A blood sample was taken from Mr Wilson's chest. It was analysed for alcohol and returned a reading of 0.15 grams per hundred millilitres of blood, three times the legal limit. There was also 0.2 milligrams per litre of Citalopran, an anti-depressant drug, present in his blood.
21 At the trial the appellant called a pharmacologist, Dr Helen Dauncey. Dr Dauncey was of the opinion that Mr Wilson's blood alcohol level would have been 0.15 grams, or about that level at the time of the accident. In her opinion it was "most likely" that Mr Wilson would have shown recognisable signs of intoxication prior to entering the vehicle. She was of the opinion that he must have consumed 10 to 18 middies of beer throughout the evening, upon the assumption that he had not consumed alcohol prior to arriving at the hotel.
22 Dr Dauncey recognised that the effect of alcohol on a person depends on the concentration of alcohol in their blood and may be modified by the individual's previous drinking experience, their age, whether the blood alcohol reading is rising, or falling, the type of alcohol that was consumed, whether food was eaten during the drinking period, the level of fatigue and the mood of the drinker at the time. Apart from the concentration of alcohol in the blood stream the most important influence is the tolerance of an individual to alcohol. However, she was of the opinion that a reading of 0.15 would produce heavy intoxication "in almost all people."
23 Dr Dauncey noted that Mr Wilson was 29 years of age at the time of his death. She suggested that he is "likely to have been at least a heavy binge drinker with some tolerance to alcohol." The trial judge observed that apart from Dr Dauncey's opinion there was no evidence to support this suggestion.
24 Dr Dauncey was also of the opinion that Mr Wilson would have been significantly intoxicated in the 30 minutes before the accident. She considered that he would have exhibited behaviour which was likely to have caused others to be aware of his physical condition. She believed that he may have been unsteady on his feet, his speech slurred and thick and his movements may have been clumsy. She further believed that the alcohol would have had an effect upon his judgment and behaviour. She was of the opinion that Mr Wilson's behaviour in accelerating the vehicle despite the requests of his passengers was consistent with a significant impairment of his judgment caused by alcohol.
25 Section 138(2)(b)(ii) required the trial judge to resolve two questions. Firstly, was Mr Wilson's driving ability impaired as a consequence of the consumption of alcohol? The evidence of Dr Dauncey indicated that it was and the respondent did not suggest otherwise. The second question was whether the respondent "ought to have been aware" of Mr Wilson's impairment.
26 As I previously indicated the correct approach to the second question was considered by the High Court in Joslyn. There are a number of passages in the different judgments which are of particular assistance in the present case. However, it is important to have in mind the facts in Joslyn. They were different, in critical respects, to the facts of the present case.
27 In Joslyn the plaintiff and defendant had gone to a party at a country property. They both consumed very considerable quantities of alcohol. When their blood alcohol was measured, presumably shortly after the accident at 8.45 am the next morning, the plaintiff was found to have a reading of 0.19 g/100ml and the defendant 0.138 g/100ml. The plaintiff had consumed alcohol until about 4.00 am when he went to sleep on the front seat of his car. The defendant was seen by others to be "quite drunk and staggering about" at about 4.30 am. She eventually went to sleep on the ground beside the plaintiff's vehicle.
28 Later in the morning the plaintiff and the defendant decided to drive to Mildura for breakfast. They arrived safely in Mildura but on the return journey the defendant noticed that the plaintiff, who was driving, was dozing off. The defendant took over the driving of the vehicle but lost control of it on a bend and it crashed.
29 This Court held that the facts which were relevant to the issue of the plaintiff's contributory negligence were confined to those which the plaintiff observed, or ought to have observed, when the defendant took over the driving. Meagher JA, who wrote the leading judgment said: "there is no evidence that either the plaintiff or the defendant were drunk at the time, and certainly no evidence that at the time the plaintiff had any reason to think that the defendant was affected by intoxication" (2001) 33 MVR 441 at 446.
30 The High Court held that the approach adopted by Meagher JA inappropriately confined the relevant facts. It said that the question of the plaintiff's contributory negligence required consideration of all the events which had occurred during the extended period of interaction between the plaintiff and the defendant, both during the previous evening and on the morning of the accident.
31 The issue which the court must determine, their Honours observed, is whether an ordinary reasonable person would have foreseen that accepting a lift from the driver was exposing them to injury by reason of the driver's intoxication [38]. "The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication". Resolution of the issue requires consideration of all of the facts of which the plaintiff was or ought to have been aware.
32 Critical to the finding by the High Court of contributory negligence in Joslyn was the fact that the plaintiff and the defendant, with others, had been drinking together for some hours and by 4 am the defendant was known to have been staggering drunk. The plaintiff also knew that the defendant had drunk to excess on the previous evening and should have known of the combined affect of alcohol and tiredness in impairing her ability to drive.