Griffin v Lee-Brown and QBE Insurance Limited ACN 000 157 899 [2000] QSC 299

[4] After finishing the carton on Saturday morning the plaintiff slept for a few hours and had lunch. Virginia Hancock who lived near by came over to the plaintiff's flat around 2pm. She, Mr Irons and the plaintiff bought a carton of VB "throwdowns" (250ml bottles) at about 2pm and took them back to the plaintiff's flat.

[5] There is some disagreement as to when the group commenced drinking on the Saturday afternoon. The plaintiff thought it was about 5pm (T16.8). Both Hancock (T46.15) and Irons (T55.45) thought the beer drinking commenced on the return to the flat with the carton of beer (ie about 2:30pm). I prefer the evidence of Hancock and Irons on this point which was consistent also with the record of the plaintiff's police interview after the accident (T21.32). The beer was evenly shared between the three drinkers.

[6] There is no evidence anything else was consumed that afternoon and the plaintiff, therefore, had 8 or possibly 9 throwdowns between 2:30 and 8:30pm. This had some relevance to the plaintiff's later conduct. A blood sample was taken from the plaintiff at about midnight at Rockhampton Base Hospital. Converting the result of the sample to familiar terminology it showed an equivalent blood alcohol reading at midnight of 0.207% (see ex9). Dr Carroll, the Acting Director, Government Medical Officer Services at Brisbane has calculated backwards to give the plaintiff a notional blood alcohol reading at 9:30pm of 0.257%. This reading is not accepted by the plaintiff. Against the accuracy of the reading is the fact that on Saturday afternoon the plaintiff had consumed only about 8 throwdowns in the 7 hours before the accident. However, the high reading may be explicable by the residual effects of the alcohol consumed on Friday night and Saturday morning. Of more concern is Dr Carroll's final comment in exhibit 9 that:

"All people with a blood alcohol level of 0.257% will appear obviously adversely affected by the alcohol to an ordinary lay observer. Most people will appear to be drunk with this blood alcohol level."

All of the witnesses called gave evidence that the plaintiff appeared to be walking normally along the road before the accident although in her evidence in chief (T109.40), Ms Williamson, the passenger in the first defendant's vehicle described the plaintiff as he veered out onto the roadway as "staggering". I will look at the plaintiff's condition more closely later. For the defendant it was submitted that the stupid behaviour described by the first defendant and Ms Williamson namely leaping in front of the first defendant's vehicle was consistent with intoxication and caused the accident. If the plaintiff was obviously drunk to an ordinary lay observer it might be thought to be more likely that he would behave in an erratic manner.

[7] At about 8:30pm on the Saturday evening the plaintiff and his friends prepared to go to Players nightclub. The plaintiff and Mr Irons walked along Auckland Street to the intersection of Roseberry Street where they met up with Ms Hancock who had earlier returned home to change. They then walked along Roseberry Street until it turned left to become Flinders Parade.

[8] Photographs tendered (ex3 & 4) show Flinders Parade to be a wide, straight, flat roadway with good lighting and unobstructed visibility.

[9] The plaintiff has no recollection of events after turning left into Flinders Parade. Flinders Parade passes under a flyover providing access across the railway line running parallel with Flinders Street to the east. The distance from the flyover to the site identified as being the accident site was estimated at about 400m by Mr King (T74.27) and about 150m by Mr Lee-Brown (T86.58). From a map it looks closer to the distance estimated by the first defendant than the distance estimated by Mr King. Flinders Parade has a grassy footpath along its western side although near the accident site there is some obstruction from light poles and bushes. The road is one lane in each direction with a total width of about 10m from gutter to gutter. The road has concrete kerbing and channelling.

[10] Ms Hancock described the group as walking on the edge of the road surface next to the gutter. She said she was in the gutter with the plaintiff immediately to her right Mr Irons was a couple of paces ahead on the road but in the gutter. Ms Hancock did not hear the first defendant's car approach. She says the three of them were talking and laughing and immediately before the impact the plaintiff had told a joke. She was unaware of the presence of the first defendant's vehicle. Mr Irons substantially supports this account except that he put himself on the grass rather than in the gutter (T57.1). He knew nothing of the approaching vehicle until he heard a thud and saw the plaintiff on the roadway immediately to his right and heard Ms Hancock screaming. Both Ms Hancock and Mr Irons say that the first defendant's vehicle pulled up some meters further on and neither heard the sound of skidding.

[11] The first defendant said he had been with his fiancee, Ms Williamson at Auckland Lookout eating ice creams. They came back down Harbour Terrace and turned left onto Flinders Parade just south of the flyover. Just as he came out from under the overhead bridge the first defendant said he observed what appeared to be two lumps in the middle of the road. He says he put his lights on high beam and the lumps were revealed to be two people crouched on the road. Those people got up and moved to the edge of the road. The first defendant only ever saw two people. After they moved off the road he said these two people walked along beside the road, one in the gutter and one on the footpath in the direction of the nightclub. The first defendant said he moved over towards the centre line to give more room and dimmed his lights. The first defendant took his foot off the accelerator so that his vehicle slowed from 60kph to 40kph. The first defendant said he wasn't watching the pedestrians but was aware of them in his peripheral vision. As he drew up to them one turned and leapt at the vehicle making contact with the A pillar and passenger side mirror. The pedestrian threw his hands up as he leapt giving the first defendant the impression he was trying to scare him. The first defendant said he immediately applied the brakes and skidded.

[12] Ms Williamson who was in the passenger seat of the first defendant's vehicle gave a somewhat similar version although it differed in some respects. She impressed me as a witness. I found her version to be the most compelling of all the witnesses although I do not entirely accept it. Ms Williamson said she saw the two people crouched on the road. They moved off and she continued to watch them. She identified the two on the road as the plaintiff and Ms Hancock (T108.5). As the car got close she says those two half turned and looked at the car. At that time they were on the footpath. The plaintiff then stepped down into the gutter. The third person was walking a little in front on the grass.

[13] As the vehicle approached Ms Williamson said the first defendant started to "merge" to the right and slow down. At that time the plaintiff also started to merge out into the roadway "staggering kind of" (T109.41). As the vehicle drew level with him she described him as doing a big step turn towards the car and throwing up his hands. She did not describe any skid.

[14] Photos of bloodstains taken the following night (ex 8) show that the plaintiff's head from which the blood emanated came to rest on the roadway about a meter from the edge of the road. Mr Irons said (and I accept) that the plaintiff was lying roughly parallel to the kerbing.

[15] Police were called. They made no note of skid marks although the following afternoon Sgt Noye has some recollection of a faint mark heading towards the bloodstain. It was submitted by Mr McMeekin S.C. for the plaintiff that this might be evidence from which I could deduce the first defendant was only 1 meter from the edge of the road at impact. I find the evidence of this mark is too vague for it to be of any assistance and the mark may well be unrelated to this event.

[16] Some additional facts are not disputed. The first defendant knew where Players nightclub was at the end of Flinders Parade. He knew it was common for people to be walking along that side of the road to Players nightclub at about that time on Saturday night (T97). He was also of the view that it was common for such people to be intoxicated (T98.2). There was no other relevant traffic on Flinders Parade.

[17] Piecing together the events as best I am able I conclude that the plaintiff was intoxicated. I am satisfied on the balance of probabilities that Dr Carroll's calculations are approximately correct as to the blood alcohol level of the plaintiff at 9:30pm. He and his friends were proceeding along Flinders Parade. I accept Ms Williamson and the first defendant when they recount the figures crouched in the road. I accept that they left the roadway and went to the side of the road and continued walking. I accept that the plaintiff stepped off the footpath and started to drift out onto the roadway. I accept Ms Williamson's description of the plaintiff as staggering. This is consistent with Dr Carroll's evidence of the observable signs of intoxication in a person with the plaintiff `s blood alcohol reading. I am not satisfied however that the plaintiff or any of his party were conscious of the first defendant's vehicle. I accept Mr Irons on this point. His lack of awareness of the presence of the first defendant's vehicle is corroborated to some extent by the fact that he was not interviewed by the police suggesting he had nothing to contribute. The first defendant had he been fully alert to the events should have realised that the behaviour of the plaintiff was erratic. He was aware of the likelihood of people with impaired co-ordination being in that area at that time. He had the opportunity to avoid any risk by moving well over to the right and passing the plaintiff, something he could safely do. At best he appears to have been "merging" to the right at about the same rate the plaintiff was drifting into the roadway. Since he could observe the plaintiff and the plaintiff by facing away from the vehicle could not have been aware of the exact position of the first defendant's vehicle even if he had noticed it at some earlier point in time the first defendant had a duty to take account of the plaintiff and the possibility of some erratic or unexpected movement.

[18] In McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 the majority of the Court said at 311:-

"The standard of care expected of a reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law offence ...."

In Trompp v Liddle (1941) SR (NSW) 108 Jordon CJ said at 109:-

"A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at a pace he chooses so far as road coming in on his left a concerned, or with complete indifference to the possibility of a car somewhere emerging from the side road as a result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something that should make him realise they are not."

[19] These passages are of relevance here. The first defendant saw the plaintiff and saw that he was acting unusually by crouching in the road and failing to walk parallel with the gutter. He could see that the plaintiff was not regarding him as he approached. In my view the first defendant was negligent in attempting to pass within one and a half meters of the plaintiff (Ms Williamson's estimate of the final sideways movement: T122) when there was a least another 5 meters of available roadway. The standard of care required of a motorist where a minor deviation can result in serious injury to others is high: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10; Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491. I am satisfied that had he been properly attentive to the plaintiff's presence on the roadway the first defendant could have avoided the accident by giving the plaintiff a reasonably wide berth to allow for his apparently erratic behaviour. I am not satisfied given where the plaintiff fell and given the described distance of the plaintiff's sideways motion and the width of the roadway that the first defendant was as close to the centre line of the roadway as he thought. I am satisfied that the plaintiff should have anticipated that a pedestrian walking away from him on the road might not be alert to his presence and if he came too close might react in a startled or unpredictable way. It follows that I am satisfied that the first defendant's negligence was an effective cause of the accident.

[20] It now falls to consider the extent, if any, of the plaintiff's contributory negligence. At the scene I accept that Ms Hancock told the police officer and the first defendant that it wasn't the first defendant's fault, that the plaintiff had just stepped out too far and that he was just being an idiot. While I consider that this was probably her genuinely held view at the time it is of little assistance. There is no doubt the plaintiff was too far out. He could not otherwise have been struck. She may well have thought in her condition immediately following the accident that being on the road at all was idiotic. I should add that I thought Ms Hancock's attempts to withdraw these remarks was unconvincing. In any case, these are subjective responses by someone who says she did not in fact see the accident. I am not persuaded that the plaintiff jumped at the first defendant's vehicle. The motion demonstrated by Ms Williamson might as easily have been a startled reaction by someone who by reason of his impaired sensibilities was unaware that he was so close to danger.

[21] From the point of view of the plaintiff's contributory negligence. I accept that the plaintiff was intoxicated. I accept that he was staggering into the roadway. I accept that as the first defendant's vehicle drew level with the plaintiff he spun around in a jumping motion and made contact with the first defendant's vehicle. I am not satisfied that this was an act of deliberate stupidity. On the whole of the evidence that seems to me to be unlikely. With a blood alcohol reading as high as it was it seems to me to be unlikely that the plaintiff would have the co-ordination to have timed a leap at a vehicle approaching him from behind with such precision. It seems to me more likely that the plaintiff was startled by the presence of the vehicle about which he was previously unaware and spun around. With his impaired co-ordination he is quite likely to have been off balance and may well have fallen towards the vehicle giving the impression of deliberately leaping in that direction. I am satisfied that the plaintiff's condition was a significant contributing factor to his making contact with the vehicle. A sober person is more likely to have heard the vehicle approach and less likely to have been so far out onto the roadway or to have so overreacted to the sudden appreciation of a vehicle in close proximity. I should add that common sense suggests that it is safer to walk towards oncoming traffic so it can be observed than to allow it to come unobserved from behind.

[22] Even though the plaintiff's control over many of these matters was affected by alcohol that is not an excuse. The plaintiff must accept the consequences of his own actions whatever their cause. I consider in the circumstances that the plaintiff should bear 35% of the responsibility for the accident.

[23] In the result the plaintiff is entitled to a judgment for 65% of the agreed figure or $110,500. I give judgment for the plaintiff against the second defendant for the sum of $110,500 and will receive submissions as to the precise form of the order and as to costs.