AAMI LIMITED v HAIN

CATCHWORDS: NEGLIGENCE - motor accident - intoxicated driver - injury to passenger - s 138(2)(b) of Motor Accidents Compensation Act 1999 - whether respondent guilty of contributory negligence - whether respondent ought to have been aware of driver's impairment - whether ordinary person would have foreseen that accepting a lift from the driver was exposing them to injury

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW)

CASES CITED: Joslyn v Berryman (2003) 214 CLR 552 McGuire v GIO (1990) 11 MVR 385

PARTIES: AAMI (Appellant) Sean Hain (Respondent)

COUNSEL: S G Campbell SC/S E McCarthy (Appellant) I D Roberts SC/ A J Black (Respondent)

SOLICITORS: Curwoods Lawyers (Appellant) Creaghe Lisle (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40125/07 DC 38/2006

BEAZLEY JA TOBIAS JA McCLELLAN CJ at CL

TUESDAY, 1 APRIL 2008 AAMI LIMITED v HAIN Judgment 1 BEAZLEY JA: I agree with McClellan CJ at CL. 2 TOBIAS JA: I agree with McClellan CJ at CL. 3 McCLELLAN CJ at CL: The respondent, Sean Hain, was seriously injured in a motor vehicle accident in Wagga Wagga on 17 May 2002. He was a passenger in the back seat of a vehicle being driven by Brett Wilson. The accident occurred at about 3.30 am after the respondent had accepted a lift to his home. The vehicle left the road at high speed, traversed a paddock and collided with a tree. Shortly after impact the vehicle burst into flames. The respondent, although severely injured, was able to escape from the wreckage but Mr Wilson, who was pinned to the steering wheel, died. 4 The appellant did not dispute that Mr Wilson was negligent. However, it was submitted at the trial that the respondent was guilty of contributory negligence. In this respect s 138(2)(b) of the Motor Accidents Compensation Act 1999 (NSW) provides that a court must find contributory negligence on the part of a motor vehicle passenger in particular circumstances. 5 Section 138(2)(b) provides as follows: "(2) A finding of contributory negligence must be made in the following cases: (a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, (b) where: (i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and (ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle," 6 The trial judge did not find contributory negligence on the part of Mr Hain. The appeal is confined to a challenge to this finding. 7 Section 138(2) of the 1999 Act is in similar terms to s 74(2) of the Motor Accidents Act 1988 (NSW) which was considered by the High Court in Joslyn v Berryman (2003) 214 CLR 552. I consider that decision later in these reasons.

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.

The decision of the trial judge 33 In his reasons for judgment the trial judge gave careful consideration to the evidence of the respondent and the witnesses Mr Chapman and Mr Riach. He accepted the respondent's evidence and the evidence of Messrs Chapman and Riach was not challenged. 34 His Honour also gave detailed consideration to the evidence of Dr Dauncey. He observed that Dr Dauncey was of the opinion that Mr Wilson's capacity to drive a motor vehicle safely would have been seriously impaired. His Honour said "I accept that". By this statement his Honour was indicating that the first limb of s 138(1)(b)(ii) - was the driver's ability relevantly impaired? - was made out. His Honour then identified the fact that Dr Dauncey was of the opinion that "there would have been obvious and recognisable symptoms of intoxication, such that anyone who began the journey with him would have known was the result of his intoxication". In respect of that opinion his Honour responded by saying: "I have taken that report into account, it is of great assistance in the matter". 35 His Honour correctly identified the test to be applied. Because there was no evidence that the respondent was aware of any impairment in Mr Wilson, his Honour said "the issue is whether the defendant has established that the plaintiff ought to have been aware of that impairment". 36 His Honour referred to the fact that the community and the Parliament has taken a serious view of those who drive when affected by alcohol. It is a criminal offence. He expressed the view that s 138 of the Act was consistent with the general approach of the Parliament and makes a person who accepts a ride with an intoxicated driver, at least to an extent, responsible for the injury they may have suffered. 37 This observation of his Honour was the subject of complaint by the appellant. The comment was unnecessary. Whether it was a correct observation it was irrelevant to the issue before him. The essence of his Honour's remark was that the Parliament had imposed burdens on passengers to take care for their own safety, not drive with intoxicated drivers and if they did and were injured they could expect any award of damages to be diminished. He believed that the legislation was intended as an instrument to assist the desirable social objective of discouraging "drink driving". If it affected his Honour's resolution of the issue it was adverse to the respondent rather than favourable to him. 38 His Honour then considered the relevant evidence of the respondent and the other witnesses. Of the respondent's evidence his Honour said: "He, through the eyes of an eighteen year old, having just finished his schooling months before, did not see anything in Mr Wilson that indicated that he was adversely affected". Complaint about this remark was made by the appellant and I shall consider it below. Importantly his Honour also said that "other and more experienced individuals did not detect that Mr Wilson was adversely affected." 39 His Honour concluded: "Taking into account all of those factual findings, in my view the question as to whether the defendant has satisfied this Court on the balance of probabilities that the plaintiff ought to have been aware of Mr Wilson's impairment must be answered 'no'. As a result the defence of contributory negligence must fail. There will be an undiscounted verdict for the plaintiff."

The appellant's submissions 40 The appellant submitted that in resolving the issue arising under s 138(2)(b)(ii) his Honour applied a subjective test rather than the objective test required by the High Court. It was submitted that the "objective" evidence provided by the blood alcohol analysis, combined with the opinion of Dr Dauncey, together with some other matters (I have set them out below) should have caused the trial judge to conclude that the respondent was guilty of contributory negligence. Because his Honour indicated that he accepted Dr Dauncey's opinion that Mr Wilson's capacity to drive would have been seriously impaired and otherwise found her report to be great assistance, it was submitted that his finding that there was no contributory negligence was erroneous. 41 The matters to which the appellant directed attention were as follows:

(a) the blood alcohol concentration of 0.15g/100 ml; (b) the opinion of Dr Dauncey that Mr Wilson had ingested the equivalent of 10 to 18 middies of full strength beer; (c) the opinion of Dr Dauncey that the deceased would have shown obvious and recognisable symptoms of intoxication that anyone with him before they began their journey would have known were the result of drinking alcohol; (d) to the plaintiff's knowledge the deceased had been on licensed premises between 9 pm and 2.30 am. This was closing time on that particular night; (e) during his time on licensed premises he had been seen by the plaintiff to drink some alcohol; (f) he was not known to have been of entirely abstemious habits; (g) the evidence indicated that the hotel operated three separate bars and during the time that the deceased was not under the respondent's observation he could have been in any one of those bars drinking alcohol (and on the evidence of Dr Dauncey he obviously was); (h) the manner in which and the speed at which the deceased drove the car. 42 The appellant further submitted that the combination of these matters is such that a reasonable person in the position of the respondent ought to have ascertained whether the deceased's capacity to drive was affected by alcohol. It was submitted the respondent should have asked a question of Mr Wilson as to whether he was fit to drive before accepting a lift with him. 43 Two further problems were raised by the appellant. The first was the reference by his Honour to the age of the respondent and the second was his failure to refer to Dr Dauncey's evidence in that section of his reasons with the heading "Findings".

Resolution of the appeal 44 The primary submission of the appellant does not accurately reflect the law as stated by the High Court in Joslyn. The statute does not require consideration merely of the available "objective evidence" to the exclusion of the observations and knowledge of the plaintiff and any other credible witness. All of the information either known to the plaintiff or which he or she could reasonably ascertain must be considered. The error identified in Joslyn was the failure to consider the knowledge which the plaintiff had or should have had of the defendant's previous drinking and other behaviour. By confining consideration to the judgment made by the plaintiff at the point when the defendant began to drive, this Court in Joslyn limited the enquiry to subjective maters. Of course, if there was nothing else which the plaintiff ought to have known that would be the end of the enquiry. But in Joslyn there was a great deal more which the plaintiff knew or, if he had himself been sober, ought to have known about the defendant's condition. 45 In the present case his Honour was correct to consider the evidence of the respondent and other witnesses as to the behaviour of Mr Wilson after he arrived at the hotel. Although the respondent knew that Mr Wilson had been there some hours, he had personally seen him consume only a relatively small amount of alcohol. He understood that Mr Wilson was a diabetic and reasonably believed that this imposed a discipline on his drinking habits. Although he had not been able to observe Mr Wilson during significant portions of the evening, there was nothing which ought to have alerted him to the fact that Mr Wilson had been drinking to excess. Of course this was also the judgment of Messrs Chapman and Riach. They did not react to Mr Wilson's behaviour or say anything which should have alerted the respondent to any impairment of Mr Wilson's ability to drive. 46 I have previously indicated that his Honour observed that the respondent saw Mr Wilson "through the eyes of an eighteen year old, having just finished his schooling months before". If by this remark his Honour was indicating that he was applying a standard of care applicable to an 18 year old, there may be an error (Joslyn [32]). However, to my mind the better view is that his Honour was indicating that the respondent did have a limited experience in such matters and accordingly his judgment, alone, may not be sufficient to justify the conclusion that the respondent was not negligent. His Honour follows his reference to the respondent's evidence with the statement that "other and more experienced individuals did not detect that Mr Wilson was adversely affected", a clear indication that he was applying the correct test. 47 I have previously referred to his Honour's findings with respect to Dr Dauncey's evidence. Although under the section of his reasons headed "Findings" he does not refer to Dr Dauncey, there is no doubt in my mind that his Honour had appropriate regard to her evidence. In the paragraph which precedes the discussion of his findings his Honour says that he has taken the report "into account" and found it of great assistance. This remark follows a detailed discussion of Dr Dauncey's opinion. He observed that in her report Dr Dauncey discussed the response of different individuals to significant levels of alcohol. His Honour observed that Dr Dauncey was of the view that a blood alcohol level of 0.15 would be expected to produce heavy intoxication "in almost all people." However, he concludes from Dr Dauncey's report that "eleven per cent of such people would not be so assessed". His Honour also acknowledged that in Dr Dauncey's opinion Mr Wilson would have exhibited signs that he lacked balance and coordination with slurred speech and clumsy movements. However, as his Honour indicates, this was not the observation of any of those who saw him on that evening. 48 The present case is different from the circumstances in McGuire v GIO (1990) 11 MVR 385 where the judgment of this Court was approved by McHugh J in Joslyn. In that case the plaintiff was aware of the quantity of drinks which the defendant had consumed and the evidence was that the defendant was obviously intoxicated. In the present case the respondent was not aware of the defendant drinking alcohol, except in a modest amount, and Mr Wilson's behaviour was not such as to cause a reasonable person to be concerned about his ability to drive the vehicle. 49 In my judgment the appeal should be dismissed with costs. **********

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