Mackenzie v The Nominal Defendant

CATCHWORDS: Motor cycle accident - uninsured motor cycle - pillion passenger injured - sues Nominal Defendant - rider and pillion passenger both heavily intoxicated - contributory negligence - statutory additions to common law - objective standard for contributory negligence - reduction according to what is just and equitable - role of pillion passenger's intoxication in what is just and equitable - depending on the circumstances, may ameliorate culpability.

Andrews v Nominal Defendant [1963] SR (NSW) 110; Bradshaw v Wallis (CA, 1 April 1996, unreported); Eastern Extension Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation (1923) 33 CLR 426; Fox v Percy (2003) 214 CLR 118; House v The King (1936) 55 CLR 499; Imperial Furniture Pty Ltd v Automotive Fire Sprinklers Pty Ltd [1967] 1 NSWR 29; Insurance Commissioner v Joyce (1948) 77 CLR 39; Joslyn v Berryman (2003) 214 CLR 552; McCamley v Harris (Young J, 2 September 1997, unreported); McPherson v Whitfield (1996) 1 Qd R 474; CASES CITED: Mendola v Warren (1993) 19 MVR 385; Miraflores v Livianos (1967) AC 826; Morton v Knight [1990] 2 Qd R 419; Nicholson v Nicholson (1994) 35 NSWLR 308; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Smith v McIntyre (1958) Tas SR 36; Talbot-Butt v Holloway (1990) 12 MVR 70; Tasita Pty Ltd v Sovereign State of Papua New Guinea (1991) 34 NSWLR 691; Williams v Government Insurance Office (NSW) (1995) 21 MVR 148; Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25.

Peter Mackenzie - Appellant PARTIES: The Nominal Defendant - Respondent

D E Graham & R E Steele - Appellant COUNSEL: R Bartlett SC & R Weinstein - Respondent

McClellands - Appellant SOLICITORS: Dibbs Barker Gosling - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40633/04 DC 855/03

GILES JA STEIN AJA GZELL J

Tuesday 7 June 2005 MACKENZIE v THE NOMINAL DEFENDANT Judgment 1 GILES JA: The appellant was the pillion passenger on a motor cycle ridden by Mr Aaron Brown. Mr Brown and the appellant were both very much affected by alcohol. The motor cycle ran off the road and the appellant was severely injured. 2 The motor cycle was owned by the appellant. It was unregistered and uninsured. The appellant brought proceedings against the respondent claiming damages for his injuries. It was agreed that the appellant's damages, if recoverable and subject to contributory negligence, were $4,750,000. Cooper ADCJ held that Mr Brown had ridden the motor cycle negligently, that the appellant had been contributorily negligent, and that the appellant's damages should be reduced by 100 per cent. In the result, the claim to damages failed. 3 The appellant submitted that the judge had erred in the extent of contributory negligence found, and that it should have been in the order of 25 per cent. Background and procedural matters 4 A person injured by the fault of the owner or driver of an uninsured motor vehicle can bring his action against the Nominal Defendant, which is liable as if it was the owner or driver of the motor vehicle: Motor Accidents Compensation Act 1999 ("the MAC Act"), s 33. The appellant's proceedings were brought pursuant to this provision. He did not join Mr Brown as defendant. 5 The respondent's defence denied that Mr Brown was the rider of the motor cycle at the time of the accident. At the trial it contended that the appellant was the rider, and Mr Brown gave evidence to that effect. The judge found that Mr Brown was riding the motor cycle. There was no appeal against the finding. 6 Under s 39(1) of the MAC Act, the Nominal Defendant can recover as a debt from the owner and driver of the motor vehicle jointly or either of them severally any amount paid by it in satisfaction of the injured person's claim. Section 39(2)(a) gives the owner a defence that the driver was driving the motor vehicle without the owner's authority. Section 39(2)(b) gives the driver a defence that he was driving the motor vehicle with the owner's authority or believed on reasonable grounds that he was driving it with the owner's authority, and believed on reasonable grounds that the motor vehicle was insured. Section 39(3) gives both the owner and the driver a defence that the motor vehicle was not required to be registered or was exempt from registration, or if required to be registered was not required to be insured. 7 The respondent's defence alleged that the appellant was the owner of the motor cycle and, pursuant to s 39(1) of the MAC Act, was liable to indemnify the respondent against any judgment he obtained. This was a defence of circuity of action, see Eastern Extension Australasia and China Telegraph Co Ltd v Federal Commissioner of Taxation (1923) 33 CLR 426 at 441; Tasita Pty Ltd v Sovereign State of Papua New Guinea (1991) 34 NSWLR 691 at 700 and McCamley v Harris (Young J, 2 September 1997, unreported) and cases cited. 8 The defence also alleged that the appellant had been contributorily negligent, the particulars including that he had "voluntarily assume[d] the risk of injury" by becoming the pillion passenger and had allowed Mr Brown to ride the motor cycle when he knew or ought to have known that Mr Brown was unlicensed and grossly impaired by the consumption of alcohol in riding the motor cycle. 9 Conformably with the defence in reliance on s 39(1) of the MAC Act, the respondent cross-claimed against the appellant claiming pursuant to that provision indemnity in respect of any judgment obtained by him. The respondent did not cross-claim against Mr Brown. 10 The appellant's reply included that Mr Brown rode the motor cycle without the appellant's authority and that the motor cycle was not required to be registered or was exempt from registration. The particulars of riding without authority were that the appellant was "grossly intoxicated with alcohol and incapable of forming any rational or informed judgment and decision about" Mr Brown's lack of licence, riding ability and experience, and state of sobriety or the advisability of and risks of travelling as pillion passenger, and so the appellant was "incapable of authorising Aaron Brown to ride the motorcycle".

11 The reply also said that if the appellant was liable in debt to the respondent pursuant to s 39(2) of the MAC Act, Mr Brown was jointly liable and the appellant was obliged to pay the respondent "no more than his common law or equitable contribution to the debt created by [s39(1)]". 12 As to contributory negligence, the reply denied that the appellant was a voluntary pillion passenger on the motor cycle and that he knew or ought to have known of Mr Brown's impairment, by reason of alcohol consumption, to ride the motor cycle. The particulars repeated that the appellant was "grossly intoxicated with alcohol and incapable of forming any rational or informed judgment and decision about" Mr Brown's lack of licence, riding ability and experience and state of sobriety or the advisability of and risks of travelling as pillion passenger, and said that as a consequence - "(i) the plaintiff was incapable of voluntarily deciding to travel as a pillion passenger; and/or

(ii) the plaintiff was incapable of knowing that Aaron Brown was an unlicensed or inexperienced rider/driver; and/or

(iii) the plaintiff was incapable of knowing that Aaron Brown's ability to ride/drive the motor cycle was grossly impaired." 13 The appellant's defence to the cross-claim repeated the parts of his reply concerned with riding without authority and no requirement for registration or exemption from registration, but strangely not the contention as to common law or equitable contribution. 14 At the commencement of the trial the appellant applied for leave to file a second cross-claim against Mr Brown, claiming indemnity or contribution in respect of any liability in debt to the respondent on the ground that Mr Brown was also liable in debt to the respondent. Mr Brown was present as a witness; so far as appears he had not been given notice that, at this late stage, he was to be brought into the proceedings as a party. Why he was to be brought in as a cross-defendant answering a claim for contribution, rather than as a defendant directly liable, was not explained. 15 The judge was concerned that the preparation for and time set aside for the hearing should not be wasted. There was extended discussion of what to do. In the result, his Honour granted the leave sought and, according to the recitation in his substantive reasons, ordered that "all issues relating to s 39(1) and the defence of circuity of action be heard separately from the plaintiff's primary action against the defendant". The judge's reasons for doing this and his formal orders were not in the appeal papers. When Mr Brown was in fact joined as a cross-defendant is unclear, but it is evident that he was not regarded as a participant in the ensuing hearing of the "plaintiff's primary action" against the respondent. 16 While it was no doubt well intended, there were at least two difficulties in the course thus taken. 17 First, the appellant contended that his intoxication was such that he was incapable of forming a rational or informed judgment about travelling as a pillion passenger on a motor cycle driven by Mr Brown, and that in consequence he had not been contributorily negligent. He relied on the same gross intoxication and incapacity to contend that Mr Brown rode the motor cycle without his authority. Whether or not his contentions were well-founded in fact and in law, there was a common issue of the effect of his intoxication. There was commonality such that the "issues relating to s 39(1) and the defence of circuity of action" should have been heard as part of the "plaintiff's primary action". 18 Secondly and more fundamentally, Mr Brown had an interest in the determination of whether there was contributory negligence and, if there was, the extent of reduction in the appellant's damages. The appellant sought to pass on to him all or part of any liability in debt to the respondent. Implicit in the second cross-claim was that, even if the appellant's liability in debt to the respondent was commensurate with the respondent's liability to the appellant, there were distinct liabilities and the appellant could obtain indemnity or contribution in respect of his liability in debt to the respondent. If that was correct in law, the amount to be passed on to Mr Brown depended on whether there was contributory negligence and the extent of reduction in the appellant's damages. 19 On the judge's holding of 100 per cent contributory negligence, the "issues relating to s 39(1) and the defence of circuity of action" did not arise, and there was nothing to pass on to Mr Brown. On appeal, however, Mr Brown was entitled to be heard on whether the judge had erred in the extent of reduction in the appellant's damages and what the reduction should have been. He had not been joined as a party to the appeal. And if the appeal were upheld and the appellant was successful in his "primary action" against the respondent, the "issues relating to s 39(1) and the defence of circuity of action" would fall for determination although involving the same factual questions as to gross intoxication and incapacity. 20 Nothing could be done on appeal to rectify the separation of issues, although I will return to the other issues at the end of these reasons. The need to join Mr Brown was not recognised until near the end of the hearing on appeal. It was left that the appellant would communicate with Mr Brown to ascertain whether he consented to being joined as a party to the appeal and whether he wished to be heard. 21 The appellant's solicitor served on Mr Brown a letter which incorrectly conveyed that the Court had directed that the matters to which it referred be brought to his attention. That was not so: the Court gave no direction, and it was for the appellant to put his house in order. No doubt trying to write in layman's language, the letter represented that the Court would be determining the shares of the appellant and Mr Brown in responsibility for the accident, and explained that the appellant would be claiming indemnity for or contribution to any repayment he might have to make to the respondent and that the proportion Mr Brown may be ordered to pay "may ultimately be that determined by the Court of Appeal in Mr McKenzie's [sic] appeal". The letter ended by stating that it would be assumed that Mr Brown did not wish to be heard if he did not respond to the letter within seven days. Mr Brown did not respond to the letter. 22 This was not entirely satisfactory, but I consider that Mr Brown was given adequate notice of the appeal and the manner in which he might be affected by its outcome. Rather than cause further incurring of costs by requiring a formal application, I consider that leave should be given to join Mr Brown as second respondent in the appeal, and that service of the notice of appeal and the appeal books upon him should be dispensed with.

The appellant, Mr Brown and the motor cycle 23 The appellant and Mr Brown both lived in Gilgandra. The accident occurred on 17 December 2000, on the Newell Highway about six or seven kilometres south of Gilgandra. 24 At the time of the accident the appellant was 34 years old. He worked as a shearer. Mr Brown was aged about 27 and worked as a rouseabout. He had known the appellant for about fifteen years, and had worked in shearing sheds with the appellant. In what appears to be a masterly understatement, Mr Brown said that he "done a bit of drinking with him". 25 The Harley Davidson motor cycle was the appellant's pride and joy. In March 1999 he had had his licence suspended for two years. He would generally not let anyone else ride the motor cycle, and had allowed it to become unregistered and uninsured. He was looking forward to regaining his licence in March 2001, in order to go on a trip to Cairns with a Vietnam Veterans' motor cycle club in the next month. 26 Mr Brown did not hold and had never held a driver's or rider's licence and, while he had ridden trail bikes off road, had no experience in riding a motor cycle on the highway. The appellant knew that Mr Brown had no licence. He thought Mr Brown immature and irresponsible, and said that he would not "in his right mind" have permitted him to ride the motor cycle.

The drinking session 27 On Saturday 16 December and Sunday 17 December 2000 the appellant, Mr Brown and others spent a considerable time drinking at the house of Mr Bob Coles. It seems that this was not uncommon. 28 The judge summarised the appellant's evidence - "17. The plaintiff said that he did not have a clear and continuous recollection of those days. He had had a dispute with his wife about his excessive drinking and he was upset. He did remember that on the Saturday evening he was walking with Aaron Brown carrying a carton of beer. As they came to a corner, he encountered his wife, Cheryl, and the children who were in the car on their way to Carols by Candlelight in the park. They pulled up and wanted him to go with them, but he said that he was too intoxicated to go to a function like that. So he refused and went to Bob Cole's house and continued drinking what he described as a large amount of alcohol at the rate of four to five stubbies per hour. His memory was that he finished drinking there at about 10 pm. He went home but found that he was locked out. He broke in through his daughter's window and ended up sleeping on the lounge. 18. He remembered punching a hole in a door which was leaning against the back of Bob Cole's house resulting in an injury to his right hand. He also recalled ringing Greg Collison on the Sunday morning to say that he could not keep an appointment to do some shearing that morning and then going to Aaron Brown's mother's home looking for him but he was not there. He then went to Bob Cole's home and started to drink again. His last recollection is of drinking at Bob Cole's home some time on the Sunday morning and his next is of waking up in intensive care in the Prince of Wales Hospital." 29 A number of witnesses gave evidence of the appellant's condition on the Sunday. 30 Mr John Thoms called at the appellant's home early on the Sunday, they went to Mr Thom's home and drank stubbies for about two hours, and then they went to Mr Coles' house with a carton of 24 stubbies. They drank at the rate of about four stubbies an hour until Mr Thoms left at about 1 pm. Mr Thoms said that the appellant was pretty well affected and he wasn't walking a straight line. 31 Mr Ian Thoms was living at Mr Coles' house. He described the appellant and Mr John Thoms arriving and drinking with others, and saw the appellant punching the door. When Mr Ian Thoms went to bed at a time he described as "the day had finished", the appellant and Mr Brown were sitting on a mattress on the front veranda. He described them as "drunk as monkeys", and said he thought the appellant was falling asleep. 32 Mr Sonny Foley arrived at Mr Coles' house at about 1 pm. The appellant was sitting on the front veranda, his speech was slurred, and when he stood he had a bit of a wobble about him. Mr Brown was also there, and was intoxicated. When Mr Foley left at about 4 pm or a little later the appellant and Mr Brown were still there and still affected by alcohol, the appellant more so than Mr Brown. The appellant was in the corner slumped on the veranda. 33 Ms Shahn Grimshaw arrived at Mr Coles' house after lunch and stayed for about three hours. She saw the appellant lying sleepy and drunk on a mattress on the front veranda. She saw him drinking, including a few nips of straight rum. She said that he was very intoxicated, much more than she had seen him on previous occasions. She saw the appellant and Mr Brown leaving the veranda in the late afternoon, and said that they were supporting each other and staggering. 34 Mr Coles described the continuous drinking during the day, including that someone at the house had a bottle of spirits of which the appellant had some. Late in the afternoon he saw the appellant and Mr Brown walking down the street "not in a straight line". He said that they were "sort of buddied up to each other" and "more or less arm in arm". 35 Mr Ronald Brain was leaving the RSL Club in Gilgandra late on the Sunday afternoon. He was with Mr and Mrs Smith and Mrs Collison, and Mrs Collison put the time at about 6.30 pm. He saw the appellant and Mr Brown walking along the footpath towards the appellant's home about 300 to 350 metres away. They had their arms over each other's shoulders and were staggering. He described them as "fairly drunk", and said that he had probably never seen the appellant more affected by alcohol than he was on that occasion. 36 Mrs Raelene Smith and Mrs Debbie Collison gave evidence of seeing the appellant and Mr Brown outside the RSL Club. Mrs Smith said that they were both fairly drunk and holding one another with their arms, and also that she had not previously seen the appellant as drunk as he was on that day. Mrs Collison's husband had been the licensee of an hotel in Gilgandra, and she had seen the appellant become intoxicated at the hotel: she said he would drink a fair bit and go to sleep. She said that outside the RSL Club the appellant and Mr Brown were sort of holding each other up with their arms around each other, struggling along, with Mr Brown seeming to hold the appellant up more. She said to the appellant, "How are you going?" The appellant's head was slumped forward. He responded by lifting his head up and dropping it. Mrs Collison said she had never seen the appellant so intoxicated and still struggling to walk.

Riding the motor cycle 37 Some of those at Mr Coles' house gave evidence of Mr Brown asking about riding the appellant's motor cycle. Mr Ian Thoms gave evidence of Mr Brown saying to the appellant on more than one occasion words to the effect that it would be a good day for a ride, to which the appellant replied that he was not going to "fuck it up" as he had only three months to go before he was entitled to get his licence back and he was not going to mess it up. Mr Thoms said that Mr Brown said he would ride the motor cycle, and that everyone laughed because the appellant would not let anyone ride it and anyway they had had too much to drink. Ms Grimshaw heard Mr Brown say to the appellant a couple of times "Let's take your bike", although she did not hear the reply. Mr Foley said he heard Mr Brown say to the appellant "Let's go and get the Hog. Let's go", and that the appellant refused. 38 As I have said, Mr Brown gave evidence that the appellant was riding the motor cycle. Mr Brown said that he had been drinking with the appellant at Mr Coles' house on the Saturday and the Sunday, and that they left the house while it was still daylight. He described his condition and that of the appellant as "drunk". According to Mr Brown, they went to the appellant's house to get a bottle of champagne to replace one which they had consumed. 39 The judge summarised Mr Brown's evidence - "76. They walked directly to the plaintiff's house with their arms around each other and talking. When they arrived at the plaintiff's house, the plaintiff went inside but Mr Brown went to the shed, the door to which was open, at the back of the house and had a look at the Harley Davidson. 77. His evidence continued that the plaintiff came out with a bottle of champagne, and asked him if he wanted to go for a ride and he said 'yes'. The plaintiff then went inside and returned with keys, helmets, a pair of joggers for Mr Brown and a pair of boots for himself. 78. According to Mr Brown the plaintiff asked him if he would take the blame for a DUI charge if he got caught and he said 'yes'. His reason for agreeing to the suggestion was: 'Well, I've - I haven't got a record for DUIs , or anything like that, and being drunk.' 79. The plaintiff then unlocked the bike and they pushed it out to the front of the shed which was right next to the back gate to the laneway. He then unlocked the padlock securing the back gate and started the bike up. Brown put the joggers on and the plaintiff put the boots on. Brown wore the helmet coloured black and brown and the white peaked cap shown in the photographs part of exhibit K and the plaintiff wore the other helmet which was black and is also depicted in a photographs in the same exhibit. He also said that the plaintiff wore the goggles appearing in photographs. 80. They mounted the motor cycle with the plaintiff in front and Brown as the pillion passenger. Neither said anything about where they were going but just went for a ride. The bike was started in the laneway, went to its end, turned left onto the Gular-Coonamble Highway, and then right and proceeded to go north to a place called Arvestry - a distance of about seven kilometres. 81. They drove through gates to 'where they used to swim', down a big hill. As they were going up the other side of the hill they were going so slowly that they laid the bike on its side. Brown rolled down the hill a bit, ran back up to where the plaintiff was holding the bike, and he helped him lift it back up. They pushed it up the top of the hill, and put down the stand because the engine was flooded. They had a cigarette and waited 15 minutes. '82. Thereafter they mounted the bike with the plaintiff driving and Brown as the passenger, left Arvestry and headed south ending up on the Newell Highway travelling towards Dubbo. 83. In evidence Mr Brown said that at the start of the journey from the plaintiff's house, the plaintiff wore the goggles and he wore a pair of purple sunglasses. They swapped them over about two kilometres after the commencement of their journey at the request of the plaintiff because the sun was in his eyes." 40 The accident happened at about 7.30 pm. The motor cycle ran off the road, in circumstances which need not now be described but were readily attributable to negligent riding by reason of inexperience and intoxication. The judge so concluded, and said that he was "satisfied on the balance of probabilities that with Brown driving the motor cycle an accident was inevitable". 41 The judge said - "112. The fact that I have not accepted the evidence of Mr Brown that the plaintiff was driving the motor cycle does not mean that other aspects of his evidence are to be rejected. They must have gone to the plaintiff's house because that was where the bike, helmets, goggles and riding boots were located and witnesses saw them walking (albeit with some difficulty) in that direction. 113. As pointed out earlier, it is common ground that the gate leading from the plaintiff's back yard to the adjoining lane was locked with a padlock. The boots, helmets and goggles which Mr Brown says that the plaintiff donned were found at the scene of the crash. The time lapse of about one hour from when they were seen outside the Services Club until the time of the accident is quite consistent with the route said by Mr Brown to have been traversed. 114. Accordingly I am satisfied on the balance of probabilities that after they arrived at the plaintiff's house there was some discussion in the back yard during which it was agreed that they would go for a ride on the Harley Davidson. The plaintiff then went inside his house and returned with keys, helmets, a pair of joggers for Mr Brown and a pair of boots for himself. The plaintiff then unlocked the bike and they pushed it out to the front of the shed which was right next to the back gate to the laneway. He then unlocked the padlock securing the back gate. Brown put the joggers on and the plaintiff put the boots on. Brown wore the helmet coloured black and brown and the white peaked cap shown in the photographs part of exhibit K and the plaintiff wore the other helmet which was black and is also depicted in a photograph in the same exhibit and the plaintiff wore the goggles appearing in those photographs. 115. I am further satisfied on the balance of probabilities that, after wheeling the motor cycle through the open back gate into the laneway, they mounted it with Brown in front and the plaintiff as the pillion passenger. The bike was started in the laneway, went to its end, turned left into the Gular-Coonamble Highway, and then right and proceeded to go north to a place call [sic] Arvestry - a distance of about seven kilometres. They continued on to the Newell Highway and to the scene of the crash."

The intoxication of the appellant and Mr Brown 42 A blood sample taken from Mr Brown at 8.30 pm on the Sunday gave a reading of 0.172 gms of alcohol per 100 mls of blood. Another sample taken at 1.20 am the next morning gave a reading of 0.24 per cent. In a report dated 29 September 2003 Professor MacDonald Christie, consultant pharmacologist, estimated Mr Brown's blood alcohol level at the time of the accident as 0.187 per cent, within a range of 0.182 to 0.192. The judge summarised Professor Christie's opinion - "At this level there would be impairment of balance, fine motor control, gross motor control as well as decreased alertness, perceptual acuity, reaction time, peripheral visual attention, judgment of speed and distance and impairment of decision-making. There would be impairment of speed and distance judgment as well as of the ability successfully to divide attention between two or more inputs. Glare resistance is also reduced and perspective is distorted. Impairment of these brain functions would be expected to be profound at blood alcohol concentrations in the vicinity of 0.19 per cent and would produce severe impairment of the ability to drive a motor vehicle. With a blood alcohol concentration in the vicinity of 0.19 per cent, severe intoxication by alcohol would be obvious to most casual observers." 43 No blood sample was taken from the appellant and tested. In a report dated 2 February 2004 Professor Jason White, impressively qualified in pharmacology, estimated a blood alcohol level of 0.25 per cent. The judge said at [120] that Professor White "also expressed the view that the plaintiff was unlikely to have made a rational and well thought out decision concerning Mr Brown's level of intoxication and how that related to riding a motor cycle." 44 In the light of the appellant's submissions on appeal, I set out relevant parts of Professor White's report underlying this brief summary - "2. What is the likely effect of the blood alcohol concentration specified in answer to question 1 on Mr MacKenzie's cognitive functioning and ability to have insight or make rational decisions? A blood alcohol concentration of 0.25% would have very significant effects on cognitive functioning and ability to have insight and make rational decisions. At this level cognitive functioning is markedly impaired and the processes of thinking slow down considerably. Thinking tends to be very simplistic and the person tends to focus on more immediate issues rather than longer term aspects. As a consequence, they often act more impulsively without weighing up all the consequences that may usually be considered in arriving at a rational decision. 3. Do you think that Mr MacKenzie was likely to have had sufficient insight, rational thought or mental capacity at 7.15 pm on 17 December, 2000 to have believed it was acceptable to permit Mr Brown to ride the motor cycle? A person so intoxicated as to not be able to walk, and with an estimated blood alcohol concentration of 0.25% is unlikely to have had sufficient insight or capacity to understand the consequences in permitting Mr Brown to ride the motor cycle. It is likely that his ability to perceive Mr Brown's level of intoxication would have been markedly impaired. Mr MacKenzie is also likely to be very easily influenced by any persuasion that Mr Brown may have attempted. In addition, Mr MacKenzie is unlikely to have considered the risk of an accident occurring given Mr Brown's level of intoxication. Each of these would have mitigated against Mr MacKenzie arriving at a rational, well thought out decision concerning Mr Brown's ability to ride the motor cycle. 4. Do you think Mr MacKenzie was likely to have had sufficient insight, rational thought or mental capacity at 7.15 pm on 17 December, 2000 to have believed that Mr Brown was, in fact, not affected by alcohol to the extent that he was able to ride the motor cycle? Mr MacKenzie is unlikely to have made a rational, well thought out decision concerning Mr Brown's level of intoxication and how that related to riding a motor cycle. It is very likely that he would have understood that Mr Brown had drunk alcohol. However, it is unlikely that he would have been able to estimate his level of intoxication whether by estimation based on the perceived amount of alcohol Mr Brown consumed or by observation of Mr Brown's behaviour. Given that Mr MacKenzie was unable to walk, the fact that Mr Brown was able to walk and support him would likely to have been interpreted by Mr MacKenzie as indicating that Mr Brown was in fact relatively sober. … 7. At 7.15 pm on 17 December, 2000 was Mr MacKenzie's [sic] probably able to make a reasoned decision for himself about the desirability of allowing Mr Brown to ride his motor cycle? Mr MacKenzie was unlikely to make a reasoned decision concerning the desirability of allowing Mr Brown to ride the motor cycle. As outlined above, he would have been unable to accurately determine Mr Brown's level of intoxication and the effects this may have had on his ability to ride the motor cycle. His level of cognitive impairment would also have resulted in a very short term focus without clear understanding of the longer term consequences of such risky behaviour. Finally, had Mr Brown attempted to influence Mr MacKenzie regarding his ability to ride the motor cycle he would have been relatively easily persuaded by any such attempts. 8. At 7.15 pm on 17 December, 2000 did Mr MacKenzie have sufficient insight and mental capacity to understand the possible consequences of allowing Mr Brown to ride his motor cycle? One of the main effects of a high blood alcohol concentration is to limit the person's perception of consequences of their actions, particularly if those consequences are other than very immediate term. The person significantly under the influence of alcohol tends to focus on very short term (seconds to minutes) consequences rather than any longer term. Mr MacKenzie is unlikely to have considered the full risk of a crash occurring in allowing Mr Brown to ride his motor cycle." 45 Dr Judith Perl, consultant pharmacologist, provided a report dated 25 October 2003. She estimated the plaintiff's blood alcohol level at the time of the accident at over 0.15 per cent; in a further report dated 21 May 2004 she agreed that it was likely to have been about 0.187 per cent. 46 None of these experts gave oral evidence. After referring to their evidence the judge said - "122. All of the evidence as to intoxication (both lay and expert) must, however, be looked at in the light of the actual actions of the two men and particularly of the plaintiff. Once they arrived at his home, the plaintiff had sufficient control over his thoughts and actions to do a number of things requiring reasoning and motor skills. In the first place he obtained boots for himself, joggers for Mr Brown, and helmets for each of them. In the second place he had sufficient presence of mind to bring out from his house the necessary keys. In the third place he had sufficient motor skills and manual dexterity to place a key in the padlock on the rear gate and to unlock it. 123. In the fourth place he had sufficient motor skills and control of his sense of balance successfully to sit as a pillion passenger on the motor cycle whilst it was driven for some 14 to 16 kilometres on the evidence of Mr Brown or for some five to eight kilometres if it was driven directly from the plaintiff's house to the accident scene. There is no suggestion in the evidence that the plaintiff had any difficulties remaining seated on the pillion seat which the photographs in evidence show to be similar and higher than the driver's seat."

Contributory negligence 47 Section 138 of the MAC Act relevantly provides - " 138 Contributory negligence - generally

(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.

(2) A finding of contributory negligence must be made in the following cases: … (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, …

(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case.

(6) This section does not exclude any other ground on which a finding of contributory negligence may be made." 48 Within its scope, this supplements and modifies the common law. The statutory direction to find contributory negligence does not exclude any other ground on which a finding of contributory negligence may be made, see s 138(6). Prior to such a direction a passenger who should have been aware of the driver's intoxication, including a passenger who had allowed himself to become intoxicated so as to be unable to appreciate the driver's condition, could be found to have been contributorily negligent: Insurance Commissioner v Joyce (1948) 77 CLR 39; Mendola v Warren (1993) 19 MVR 385; Williams v Government Insurance Office (NSW) (1995) 21 MVR 148. Such a passenger could be found to have been contributorily negligent if the driver's condition was not intoxication but, for example, inexperience, whereby accompanying him as passenger was failure to take reasonable care for his own safety. 49 Section 138(2)(b) does not require that the reason for the passenger's unawareness of the driver's intoxication was the passenger's own intoxication. Nor, if that was the reason for the passenger's unawareness, does s 138(2)(b) cease to apply. It is enough that the passenger ought to have been aware of the driver's impaired ability. 50 In Joslyn v Berryman (2003) 214 CLR 552 an intoxicated passenger was injured in an accident caused by the driver's intoxication. It was held that the passenger was a voluntary passenger and, by force of s 74(2)(b) of the Motor Accidents Act 1988 ("the MA Act"), the predecessor to s 138(2)(b) of the MAC Act, had been contributorily negligent, because a reasonable man in his position would have known that the driver's ability to drive the motor vehicle was impaired by her consumption of alcohol. McHugh J in particular discussed contributory negligence at common law, under which the passenger had also been contributorily negligent because a reasonable man in his position would have known of the driver's intoxicated condition and also of her inexperience and that the vehicle was defective. The reasonable man did not have the intoxicated passenger's impaired capacity to know that the driver was intoxicated or inexperienced and that the vehicle was defective, or to appreciate that by becoming a passenger he was exposing himself to a risk of injury. 51 The question in Joslyn v Berryman was the extent of the circumstances to which regard was had in determining what the passenger ought to have known. The passenger and the driver had earlier consumed much alcohol, to the point where the driver was "staggering drunk". Their journey began with the passenger as driver. His companion remonstrated with him, whereupon he said she should drive and she took over as driver. It was found that at that time the driver was not showing objective signs of intoxication. The trial judge held that there was contributory negligence and reduced the passenger's damages by 25 per cent. In the Court of Appeal, where the common law was applied without reference to s 74 of the MA Act, it was held that the relevant circumstances were confined to what the passenger knew or ought to have known at the time his companion began to drive, and that contributory negligence had not been established. In the High Court it was held that this was incorrect. It was held that, whether at common law or under s 74, in determining whether the passenger ought to have been aware that the driver's ability was impaired by alcohol regard should be had to the events of the preceding hours, so that a reasonable man in the passenger's position would have known that the driver was probably still affected by alcohol. 52 The Civil Liability Act 2002 ("the CL Act") applied to this case, ss 5R and 5S providing - " 5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 53 Section 5R did not diminish the authority of Joslyn v Berryman. Section 5S addressed in one respect the consequences of contributory negligence. 54 By s 138(3) of the MAC Act, the damages are to be reduced "by such percentage as the court thinks just and equitable in the circumstances of the case". The wording differs from that in the long-standing general provision in s 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 ("the LR Act"), and from that in the replacement s 9(1) of the LR Act since 2000 ( but applicable to earlier wrongs). 55 Section 10(1) provided - "10(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ..." 56 The approach to reduction of damages in accordance with s 10(1) was described in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494 - "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." 57 This approach was applied many times, and became well established, although in Smith v McIntyre (1958) Tas SR 36, it was said (at 43) that it did not "purport to be an exhaustive statement of the principles upon which damages are apportioned". As with all forms of words explaining the words of a statute, that must be so. 58 Section 9(1) provides "9 Apportionment of liability in cases of contributory negligence

(1) If a person (the claimant ) suffers damage as the result partly of the claimant's failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person: (a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and

(b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." 59 This replaces references to fault with references to failure to take reasonable care and to a "wrong", but continues to refer to regard to the claimant's share in the responsibility for the damage. The lastmentioned words are omitted from s 138(3) of the MAC Act. The equivalent omission from s 74(3) of the MA Act was noted in Nicholson v Nicholson (1994) 35 NSWLR 308. The statutory direction concerned failure to wear a seat belt. It was held that, if the failure had not contributed at all to the passenger's injury, it could be just and equitable to reduce his damages by a percentage of nil; as Mahoney JA put it (at 332), it was consistent with the provision to find the passenger guilty of contributory negligence but refuse to reduce his damages. His Honour pointed out that s 74 called for a finding of contributory negligence where perhaps at common law a finding could not be made, and surmised (at 333-4) that the formula in s 74(3) was used to enable the Court to decline to reduce the damages where there was "no contribution by the deemed negligence". 60 In Joslyn v Berryman at [133] Kirby J thought that the more limited formula wrought a change and "leaves wholly at large the reduction for contributory negligence, made by reference to nothing more than what 'the court thinks just and equitable'". His Honour did not more directly indicate whether or not the approach in Podrebersek v Australian Iron & Steel Pty Ltd no longer held good. Hayne J at [157], on the other hand, said that s 74(3) of the MA Act required that the process described in Podrebersek v Australian Iron & Steel Pty Ltd be undertaken. 61 Section 5S of the CL Act overcame the decision in Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25, that a reduction of 100 per cent was not permissible because s 10(1) of the LR Act presupposed that there was fault of both parties. Linked with s5S was the conversion, by s 140(1) of the MAC Act, of the defence of volenti non fit injuria to a matter of reduction of damages "on the presumption that the injured person … was negligent in failing to take sufficient care for his or her own safety". The source of these changes was the report of the Panel in Review of the Law of Negligence, September 2002, see paras 8.20-8.27. The Panel contemplated that there "may be cases in which the plaintiff's relative responsibility for the injuries suffered is so great that it seems fair to deny the plaintiff any damages at all", and observed that this did not mean that the defendant was not at fault but only that, as between the two parties at fault, the plaintiff should bear full legal responsibility for the harm suffered (para 8.24). 62 It may be that the omission from the s 74(3) and s 138(3) formulae of "having regard to the claimant's share in the responsibility for the damage" was a corollary to this legislative change, by removal of express reference to shared responsibility in order better to accommodate 100 per cent contribution. Whatever the explanation, it is difficult to see that the approach described in Podrebersek v Australian Iron & Steel Pty Ltd has fallen away. Particularly is that so when the reduction required by s 138(3) is when a finding of contributory negligence directed by s 138(2) has been made, but contributory negligence may be found at common law where the passenger should have been aware of the driver's intoxication and where the passenger should have been aware of, for example, the driver's inexperience. There could hardly be overlapping different processes of determining a reduction in damages, with different outcomes. 63 What is just and equitable must be determined in a principled way, and as Priestley JA observed (in a judgment dissenting in the result) in Bradshaw v Wallis (CA, 1 April 1996, unreported), "[t]o comply with s 74(3) requires the court to arrive at a percentage which inevitably involves as part of the process some kind of comparison between the balance to be attached (in this case) to the driver and the plaintiff". In the comparison, the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage will call for attention. In the present case, neither the appellant nor the respondent suggested that the approach described in Podrebersek v Australian Iron & Steel Pty Ltd was inappropriate.

The judge's finding of contributory negligence 64 The judge said, after finding that the accident was caused by Mr Brown's negligence and making the observation that with Mr Brown riding the motor cycle an accident was inevitable - "127 There is no doubt that Brown drove the motor cycle negligently and that negligence caused the plaintiff's grave injuries. But, it was the plaintiff who let him drive it and who rode on it as a pillion passenger in circumstances where he then knew - i. Brown did not have a licence to drive a motor cycle and, therefore, had not been examined in his proficiency to drive it by an appropriate testing authority.

ii. Brown had never before driven a Harley Davidson motor cycle or indeed any other road bike and that his experience was limited to driving a trail bike.

iv. Brown was a person whom he regarded as immature and irresponsible.

v. Brown was a person who, 'in his right mind' he would never allow to drive his Harley Davidson motor cycle." 65 The judge's reasons then had the heading, "CONTRIBUTORY NEGLIGENCE", followed by - "128. Under these circumstances the plaintiff was guilty of contributory negligence. The next question to determine is by what percentage should the plaintiff's damages be reduced." 66 Then referring to s 138 of the MAC Act, the judge said at [131] that, having regard to the matters in his [122] and [123], he was satisfied that the appellant was at the time of the accident a voluntary passenger on the motor cycle. He was satisfied that Mr Brown's ability was seriously impaired as a consequence of the consumption of alcohol and that the appellant "was aware, or ought with the exercise of reasonable care to have been aware" of the impairment. He considered that there was nothing to establish that the appellant could not reasonably be expected to have declined to become a passenger on the motor cycle, and that "[a]ccordingly, there must be a finding that he was guilty of contributory negligence". 67 These findings were not solely of contributory negligence as directed by s 138(2)(b) of the MAC Act. There was initially a finding of contributory negligence because, as well as knowing that Mr Brown was intoxicated, the appellant knew that Mr Brown was unlicensed and inexperienced and regarded him as immature and irresponsible and not fit to be allowed to ride the motor cycle. Although not specifically stated, plainly the judge found that the appellant failed to take reasonable care for his own safety quite apart from awareness of Mr Brown's driving ability being impaired as a consequence of the consumption of alcohol. And as to s 138(2)(b), he found contributory negligence because the appellant was aware of Mr Brown's intoxication and, without confining himself to one or the other alternative, that the appellant "was aware, or ought with the exercise of reasonable care to have been aware" of the impairment.

The judge's determination of a just and equitable reduction in damages 68 The judge referred to s 138(3) of the MAC Act, ss 5R and 5S of the CL Act, and other legislation, and at [139] posed the questions - "i. By virtue of section 5R is the conduct of the plaintiff in allowing Aaron Brown to drive his motor cycle whilst he was then a voluntary pillion passenger on that cycle to be viewed in the light of his (the plaintiff's) then highly intoxicated condition; or is it to be viewed from the standpoint of the objective reasonable and sober person?

ii. In the circumstances of this case, upon what bases should the court act when complying with the requirement of section 138(3) of MACA to reduce the plaintiff's damages 'by such percentage as the court thinks just and equitable in the circumstances of the case'?" 69 He answered the first question from Joslyn v Berryman, citing from the judgment of McHugh J at [38] and [39] and saying at [143] - "143. It follows that even if the plaintiff was so intoxicated that he did not appreciate the dangers of being a pillion passenger on a motor cycle driven by Aaron Brown he is still guilty of contributory negligence because a reasonable person in the position of the plaintiff would know or ought to have known at the time that Brown was highly intoxicated and inexperienced in driving such a motor cycle." 70 He then turned to the second question. He recorded that the appellant submitted that an objective test was confined to whether the appellant was guilty of contributory negligence, and that the determination of the percentage reduction was "not governed by this objective test but by what is 'just and equitable'". He recorded the submission that the appellant should not be found guilty of significant contributory negligence, because he had "drunk himself into a state of incapacity so that he did something which, 'in his right mind', he would never do, namely embark as a pillion passenger on the motor cycle journey with Aaron Brown driving", and submissions, with reference to dicta of Macrossan CJ in McPherson v Whitfield (1996) 1 Qd R 474 at 478-9, to the effect that the contributory negligence was less significant because at the time the appellant drank himself into a state of incapacity it was not foreseeable that the ride on the motor cycle would take place. The appellant said that the percentage reduction should be in the region of 20 per cent. 71 The judge recorded that the respondent submitted to the contrary and that the percentage should be 100 per cent. 72 The judge declined to accept that an objective test was confined in the manner suggested, saying at [158] - "158. Section 138(3) cannot be read in isolation but must be read in the over-all context of the relevant sections of MACA and the Civil Liability Act. One of the relevant sections is section 5R(2) of the Civil Liability Act which sets out the standard of care required of the plaintiff - namely that of a reasonable person in the position of the plaintiff and 'reasonable person' means a reasonable person who is sober and not a person who is so intoxicated that he is acting in a manner in which he would not do 'if in his right mind'." 73 The judge noted that s 138(3) of the MAC Act differed from s 9(1) of the LR Act, because it did not refer to regard to the plaintiff's share in the responsibility for the damage, but observed that the process long established under the latter Act of making a comparison of culpability and the relative importance of the acts of the parties in causing the damage would normally be part of consideration of the circumstances of the case (at [160-162]). 74 The judge said - "165. It is submitted on behalf of the plaintiff that this is not one of the worst situations where the passenger and driver know or ought to know before the drinking spree started that each of them is likely to get so drunk as to lose the capacity to judge whether or not the driver has in fact lost the capacity to drive safely. In contrast, this case is one where self-induced intoxication was achieved without any reasonable appreciation of a risk of later being a passenger on a motor cycle driven by an inebriated person. In this case the plaintiff could have walked home or 'crashed out' at Bob Coles' home. He never imagined being a passenger on his motor cycle driven by Aaron Brown when he commenced his drinking spree. 166. I do not accept that this is not one of the worst situations of contributory negligence. In my view the culpability and causal potency of the plaintiff's share in the responsibility for his damage is far greater than in the example propounded on behalf of the plaintiff for the reasons set out in the ensuing paragraphs. 167. The plaintiff was actually at his home. He had control over the motor cycle. He had control over, and brought from his house, the key to the locked padlock on the back gate through which the cycle had to pass in order to reach the roadway. He had possession of, and brought from his house, the riding boots, the joggers and the helmets which he distributed between Aaron Brown and himself. He yielded the motor cycle up to Brown, unlocked the padlock to the back gate and assisted Brown to wheel the bike out of the back gate. He then allowed Brown to sit in the driver's seat whilst he sat on the pillion seat and allowed the motor cycle to be driven off on to the public road. 168. And he did all of this a) knowing that Brown had no motor cycle rider's licence and, therefore, had not been tested as competent to drive by an appropriate authority,

b) knowing that Brown had never driven a Harley Davidson or any other form of road motor cycle before and therefore lacked experience in handling such a vehicle,

c) knowing that Brown was a person whom he regarded as immature, irresponsible and a risk taker and one whom he would never allow to ride his motor cycle if in his right mind,

d) knowing that Brown had been drinking a considerable amount of alcohol during the course of that day and the previous day,

e) knowing that Brown was heavily intoxicated. 169. Under these circumstances a reasonable person in the position of the plaintiff knew, or at least ought to have known, that Brown was so incapable of handling the vehicle that it was inevitable that an accident would occur. 170. It is quite true to say that Brown was the one who was driving at the time of the accident and that the accident occurred because of his negligence. But it was the plaintiff who put him in the driver's seat and himself on the passenger's seat of the motor cycle. It was the plaintiff who created the situation where an accident would inevitably occur. 171. I have used the words 'inevitable' and 'inevitably' quite deliberately. In many cases (probably most) the circumstances in which a plaintiff became the passenger of a vehicle driven by an intoxicated person would make the prospect of an accident possible or probable. In such cases the extent to which it would be just and equitable that a plaintiff's damages may be reduced could range from about 25% to about 80%. But the facts of this particular case satisfy me on the balance of probabilities that it was the plaintiff who created the situation where an accident would inevitably occur. 172. The consequences to the plaintiff are tragic. One cannot but have considerable sympathy for his current plight. But I am satisfied on the balance of probabilities that if ever there was a case which comes within section 5S of the Civil Liability Act, this is it. 173. Accordingly, I find that it is just and equitable in the circumstances of this case to reduce the plaintiff's damages by reason of contributory negligence, by 100%. It follows that his claim for damages is defeated."

The basis for the judge's assessment of 100 per cent contributory negligence 75 The appellant accepted that contributory negligence had correctly been found. The issue was the reduction in damages according to what was just and equitable in the circumstances of the case. Critical to the judge's assessment of 100 per cent contributory negligence were his findings not only that the appellant acted as described in the judge's [167], but also that the appellant had knowledge of the matters enumerated in his [168]. As has been seen, the knowledge found by the judge was important also in his finding of contributory negligence. The knowledge included, but was not limited to, knowledge that Mr Brown was heavily intoxicated. The finding of actual knowledge is apparent not only from what the judge said at this point in his reasons, but from what he had said in finding contributory negligence before he came to what was just and equitable. The contributory negligence was based on actual knowledge of the matters in the judge's [127], and those matters were substantially repeated in his [168]. 76 The judge's determination must be seen in the light of the pleadings. The appellant's position was that his intoxication was such that he was acting without capacity to act voluntarily or to know that Mr Brown was unlicensed and inexperienced and grossly impaired in his ability to ride the motor cycle. The focus on incapacity, an extreme position, is important. The judge did not accept the extreme position. He found voluntariness and actual knowledge; that, despite his own intoxication, the appellant had the capacity to know the matters in [168] and to "allow" (see [167]) the motor cycle to be ridden by Mr Brown. 77 Because he so found, the judge did not accept the appellant's submission recorded in his [165], which was premised upon the appellant having lost the capacity to judge whether Mr Brown was unfit to ride the motor cycle. In these circumstances, he said in his [170] that the appellant put Mr Brown in the driver's seat and created the situation where an accident would inevitably occur.

The questions on appeal 78 The appellant did not maintain a challenge to voluntariness; he abandoned a contention that his intoxication was such that he was not a voluntary passenger on the motor cycle because he was not sober enough to form the intention to accept the ride - "so drunk he didn't know what he was doing". The challenges on appeal, as developed in submissions, ranged widely and had some overlap; I do not think that they sufficiently recognised the basis for the judge's assessment just described. 79 The contentions came down to -

(a) error in fact-finding, in accepting Mr Brown's evidence of the events at the appellant's house before they set out on the motor cycle;

(b) error in law, in determining what was just and equitable on an objective standard of a reasonable person in the position of the appellant without regard to the appellant's intoxicated condition; and

(c) appellable error in assessment of what was just and equitable, going beyond the error in (b), in failing to have regard to the whole of the conduct of the appellant and Mr Brown including that appellant's intoxication made him incapable of knowing that Mr Brown was unlicensed, inexperienced and intoxicated. 80 There was particular overlap in the submissions as to contentions (b) and (c), and the distinction between them was not clearly drawn. Buried within the submissions was the more limited contention - (d) appellable error in assessment of what was just and equitable, in failing to have regard to the effect of the appellant's intoxication, short of incapacity, on his acting as described in the judge's [167] with the knowledge of the matters in his [168].

Contention (a): error in fact finding 81 The appellant submitted that the judge should not have accepted Mr Brown's evidence of he and the appellant returning to the appellant's house, the appellant asking him if he would like to go for a ride on the motor cycle, the appellant fetching helmets, footwear and keys, and so on; see the judge's [112]-[114] earlier set out, taken up in his [167]. The submissions accepted that the judge "inferred that [the appellant] retained sufficient perspicacity, despite his alcohol consumption, to be the driving force behind the journey on the motor cycle". This was obviously enough a reference to the judge's findings in his [167]-[168] and to his [170] as to the appellant putting Mr Brown in the driver's seat. The thrust of the submissions was that Mr Brown's evidence should not have been accepted and used to ground the judge's findings as to the appellant's cognitive capacity prior to going on the journey on the motor cycle, because Mr Brown had been disbelieved on who was riding the motor cycle and was an unreliable witness, and that the lay and expert evidence going to the appellant's intoxication and its effect on his functioning mandated rejection of evidence that the appellant acted in a manner showing some reasoning and motor skills. 82 In my opinion, no error has been shown in the judge's acceptance of the evidence of Mr Brown. 83 It is well established that a judge can accept the evidence of a witness in one respect but not in another respect. It must depend on the circumstances. In this case the judge was entitled to reject Mr Brown's evidence on who was riding the motor cycle but accept it on how he and the appellant came to be on the motor cycle. Who was riding and who was the pillion passenger was a discrete matter, which Mr Brown had answered differently on different occasions. An important occasion was when, after legal advice, he pleaded guilty to riding the motor cycle while intoxicated. No doubt whether Mr Brown should be believed in other respects called for particular consideration, but the judge was alive to that and Mr Brown's evidence had the support that the appellant must have made the motor cycle available and provided the helmets and goggles, and that the appellant was on the motor cycle as the pillion passenger. 84 The lay evidence to the effect that the appellant was very drunk and more drunk than had previously been seen, and the observations of the appellant and Mr Brown staggering down the street holding each other up, supported significant intoxication, but it was in general terms and did not exclude that the appellant retained the capacity to act as Mr Brown described. Nor did the expert evidence exclude his retaining that capacity. I have set out relevant parts of the report of Professor White. He was properly short of categorical, and the information supplied to him was not shown to have included anything reflecting Mr Brown's evidence presently in question. Professor White's opinion really did not go to capacity to act as Mr Brown described, but to whether in so acting the appellant was acting impulsively and without full consideration of what might occur. He did not give an opinion directed to whether the appellant could have functioned as described by Mr Brown. None of the three experts was cross-examined to obtain an opinion upon whether the appellant's functioning as described was negated by his intoxication. 85 The appellant proffered a number of particular reasons for rejecting Mr Brown's evidence presently in question: for example, that he had a criminal record and was a heroin user; that the sunglasses had not been found at the scene of the accident, nor had a bottle of champagne he said he had tucked between his legs; and that he professed more vivid recollection than was compatible with his own intoxication. The appellant submitted that Mr Brown's evidence was glaringly improbable, and contrary to an incontrovertible incapacity for the appellant to act as he described established by the lay and expert evidence in the light of the particular reasons. Fox v Percy (2003) 214 CLR 118 and like well-known cases were cited. In my opinion, it was open to the judge to accept the evidence of Mr Brown to the extent to which he did so. 86 I have described as critical the judge's findings that the appellant acted as described in the judge's [167] and as to the appellant's knowledge of the matters in his [168]: the matters included Mr Brown's intoxication. Those findings were open to the judge. The conduct of the appellant, in putting Mr Brown in the driver's seat with the knowledge, may nonetheless have been affected by the appellant's own intoxication in that his intoxication caused him to act impulsively and without full consideration of what might occur: I intend in these words to encompass the various facets of the opinion of Professor White. It is likely that the judge accepted that that was so, because in distinguishing culpability in the context of the Podrebersek v Australian Iron & Steel Pty Ltd approach from moral culpability he said at [163] that the court "is not concerned to punish the plaintiff because he became so heavily intoxicated as to impair his capacity to make judgments which a sober person would make". Hence contention (d), later in these reasons.

Contention (b): error in law 87 The appellant accepted that the judge had correctly stated the process for apportionment in accordance with Podrebersek v Australian Iron & Steel Pty Ltd, but submitted that he had misapplied the process. He submitted that, while an objective test is applied when finding contributory negligence, that is not so at the separate and next stage of determining what percentage reduction is just and equitable, when a subjective test is applied. It was said that the judge had erred in applying an objective standard to the appellant's conduct when making the comparison of culpability and causal potency. 88 While the terms are convenient, it can be misleading to refer to an objective test and a subjective test, and to draw a sharp line between them. In determining contributory negligence there must be regard to the circumstances of the plaintiff whose conduct is in question, because the ordinary reasonable man is engaged in the person's conduct. Under s 5R of the CL Act, the standard of care required of the person who suffered harm is "that of a reasonable person in the position of that person", and contributory negligence is determined subjectively so far as it is to be determined "on the basis of what that person knew or ought to have known at the time" (emphasis added). Section 138(2)(b) of the MAC Act refers to impaired driving ability of which the injured person "was aware, or ought to have been aware" (emphasis added). Further, referring to a wholesale objective test or subjective test overlooks that in determining what percentage reduction is just and equitable there may be reference to the subjective (the plaintiff's conduct) and the objective (the reasonable man's conduct). 89 What did the judge do by way of applying an objective standard to the appellant's conduct? When that is understood, he did not err in the manner suggested. 90 I have described the basis for the judge's assessment of 100 per cent contributory negligence. He did not attribute to the appellant, when the appellant allowed Mr Brown to ride the motor cycle with himself as pillion passenger, the reasonable man's capacity to understand what he was doing. The judge found that, despite his intoxication, the appellant had that capacity. He did not attribute to the appellant the reasonable man's knowledge of the matters in his [168], including Mr Brown's intoxication. He found that, despite his intoxication, the appellant had that knowledge. Only in his [169] did the judge refer to what a reasonable person in the position of the appellant ought to have known, namely, that Mr Brown was so incapable of riding the motor cycle that it was inevitable that the accident would occur. 91 So far as the judge did this, he was not in error. The reasonable man's knowledge attributed to the appellant was knowledge of a conclusion, from the appellant's knowledge of Mr Brown's inability safely to ride the motor cycle. It was the contributory negligence itself, the appellant's falling short of the standard of care of a reasonable man. Where the defendant has been negligent and the plaintiff has been contributorily negligent, each of them having in his conduct fallen short of the standard of care of the reasonable man, that each has so departed is a necessary foundation for any process affecting the plaintiff's recovery. It does not matter whether the process is an assessment of what is just and equitable, without more, or is an assessment of what is just and equitable with added reference to the plaintiff's share in the responsibility for the damage. There can not be jettisoned that each of them failed to take due care, in the case of the defendant for the plaintiff's safety and in the case of the plaintiff for his own safety; it is the starting-point for the process. 92 The appellant submitted that the judge erroneously imported s 5R(2) of the CL Act into determining what was just and equitable, because he had regard to that provision in his [158] when he rejected the submission that an objective test was confined to whether the appellant was guilty of contributory negligence. The appellant's submission to the judge sought to put out of account in determining what was just and equitable that the appellant had fallen short of the standard of care of the reasonable man. The dicta of Macrossan CJ in McPherson v Whitfield on which the appellant relied, in a passage set out and underlined in the judge's reasons, were to the effect that there may not be contributory negligence at all if the passenger became intoxicated at a time when travelling as a passenger could not be foreseen. It is difficult to see that this has survived s 138(2)(b) of the MAC Act. The judge correctly considered that the contributory negligence itself, ascertained in accordance with s 5R(2), remained for his determination of what was just and equitable. 93 When arriving at his assessment of 100 percent contributory negligence, the judge proceeded upon his findings as to the appellant's conduct and his actual knowledge. He did not exclude from his consideration that the appellant was intoxicated, or the circumstances in which he came to be intoxicated. His attention was drawn to those matters in the appellant's submission recorded in his [165], and he did not reject them as irrelevant. Rather, given his findings as to the appellant's conduct and knowledge, he did not think they took the case out of a worst situation of contributory negligence. The appellant's complaint should not have been that the judge applied an objective test in determining a just and equitable percentage reduction, but that his subjective basis in the appellant's conduct and knowledge was flawed because not tempered by regard to whether in acting as he did, and with the knowledge found, the appellant's intoxication caused him to act impulsively and without full consideration of what might occur.

Contention (c): whole conduct and incapacity 94 The appellant submitted that the judge had misapplied the process described in Podrebersek v Australian Iron & Steel Pty Ltd because he had failed adequately to take account of Mr Brown's role in the accident or of the whole of the conduct of the appellant and Mr Brown in relation to the accident. He said that the only reference to Mr Brown's conduct in assessing the just and equitable reduction was in the judge's [170], and that while it referred to Mr Brown's negligence it did not refer to the fact that Mr Brown was unlicensed and inexperienced, was intoxicated, and had agitated for a ride on the motor cycle. He put forward a number of matters as to the appellant's conduct which he said fell for consideration, in substance that the appellant would normally not have let Mr Brown ride the motor cycle, and only did so, and went with him as pillion passenger, because he was incapable, as a result of his drinking at a time when riding the motor cycle was not in contemplation, of knowing that Mr Brown was unlicensed and inexperienced and was grossly impaired in his ability to ride the motor cycle. 95 It is fanciful to regard the judge as having failed to take into account that Mr Brown was unlicensed, inexperienced and intoxicated. They were the stuff of Mr Brown's negligence. When the judge said that the appellant put Mr Brown in the driver's seat, that necessarily involved regard to the conduct of Mr Brown, together with that of the appellant, from Mr Brown's agitation for a ride while at Mr Coles' house to the appellant's acquiescence at his own house. 96 Nor did the judge fail to take into account the appellant's drinking and any resultant incapacity in knowing that Mr Brown was unlicensed, inexperienced and intoxicated. The appellant's case was pitched at the level of incapacity. To repeat, the judge's attention was drawn to the appellant's intoxication and the circumstances in which he came to be intoxicated in the appellant's submission recorded in his [165], a submission that the appellant had lost the capacity to judge whether or not Mr Brown had lost the capacity to ride safely. He considered that the appellant's conduct, with the knowledge he found the appellant had despite his intoxication, was nonetheless a worst case situation, where the appellant's departure from the standard of care of a reasonable man and the importance of his conduct in the occurrence of the accident when compared with Mr Brown's departure and conduct were such that 100 per cent reduction was just and equitable.

Contention (d): effect of intoxication short of incapacity 97 The appellant submitted that the judge's assessment of what was just and equitable was plainly unjust and unreasonable, and so appellably erroneous. He said that it could not be just and reasonable "for a drunk driver to walk away effectively blameless … so that the passenger, who was also drunk, is deemed to be solely responsible and wholly to blame". No doubt the submission rested upon one of the forms of discretionary error in House v The King (1936) 55 CLR 499 at 505, that where the result is unreasonable or plainly unjust failure properly to exercise the discretion may be inferred. 98 In Podrebersek v Australian Iron & Steel Pty Ltd, in which a jury found the plaintiff 90 per cent responsible for his injury, it was said at 493-4 - "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v Lowenstern [1958] VR 594. In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did." 99 On the judge's basis for his assessment of 100 per cent contribution, I do not think it can be held that the judge's exercise of discretion miscarried. It is not correct to say that the intoxicated Mr Brown walked away blameless and the intoxicated appellant was deemed to be wholly to blame. As the Panel pointed out in Review of the Law of Negligence, September 2002, it remained that Mr Brown was at fault and the appellant was also at fault. As between them, the appellant would be judged wholly responsible, but because the law required such a judgment as a matter of legal responsibility. If the intoxicated appellant, knowing despite his intoxication that Mr Brown was unlicensed, inexperienced and wholly unfit to be allowed to ride the motor cycle, and was severely intoxicated, invited Mr Brown to ride the motor cycle and joined him as pillion passenger, the judge's determination was open to him. 100 The appellant called in aid the assessment of responsibility made by Cooper J in Morton v Knight [1990] 2 Qd R 419. The passenger had drunk beer and whisky to the stage that he was "paralytic" and "a mess". He met the driver by chance, and was offered a lift home. Cooper J held that the passenger was contributorily negligent in becoming a passenger in a car driven by the obviously intoxicated driver, and that it did not matter that his own intoxication precluded him from knowing the driver's condition and appreciating the risk. His Honour went on (at 430) - "In determining the relative culpability of the plaintiff and the defendant, I am satisfied that by far the greater culpability rests with the defendant. The defendant was in charge of the motor vehicle, his actions had the greatest potential to cause injury to the plaintiff, he was aware that the plaintiff was very intoxicated and impaired in his capacity to make decisions in his own interest and the defendant's intoxication caused or contributed to his negligent driving. The plaintiff for his part did not go out on a drinking spree with the defendant and did nothing to encourage the defendant to become as intoxicated and impaired in his driving as I have found him to be. That is, the contributory negligence had no "causative potency" (see Davies v. Swan Motor Co . [1949] 2 K.B. 291, 326) in the negligent conduct of the defendant or the accident. The negligence of the plaintiff was passive, and lay in placing himself in a position of danger within the car. In all the circumstances, I find that the conduct of the plaintiff in getting into and remaining in the motor vehicle on its journey contributed to the extent of 20 per cent of the injuries which he suffered." 101 The facts were very different from those of the present case. The appellant was in charge of the motor cycle; his negligent conduct was in no sense passive. The assessment was, with respect, remarkably low. In reconsidering the reduction of the passenger's damages in Berryman v Joslyn a reduction of 60 per cent was found, and in Williams v Government Insurance Office (NSW) a reduction of 80 per cent was upheld. The cases turn on their own facts. I have gone to a number of other cases of intoxicated passengers of intoxicated drivers, and the assessments vary widely. It is necessary to make an assessment on the facts of this case. 102 In my opinion, the only occasion for questioning the judge's determination is that he did not take into account that the conduct of the appellant in putting Mr Brown in the driver's seat, with the knowledge found, was affected by his own intoxication so as to be impulsive and without full consideration of what might occur. This is another form of discretionary error in House v The King, failure to take into account a relevant matter. Although not directly so put, complaint in that respect appears to me to have lain within the appellant's submissions, although obscured by focus on capacity to act and have awareness as found by the judge and failure to recognise the basis for his assessment. 103 The judge assessed culpability and causal potency, as to the former meaning the degree of departure from the standard of conduct of the reasonable man, upon his findings as to the appellant's conduct and knowledge. While the appellant knew, despite his intoxication, that Mr Brown was unlicensed, inexperienced and intoxicated, and would ordinarily not have countenanced his riding the motor cycle, but nonetheless allowed him to do so and joined him as pillion passenger, was it relevant that he was affected in the manner suggested by Professor White? 104 In my opinion it was relevant, although depending on other matters the relevance could operate in either direction: see Talbot-Butt v Holloway (1990) 12 MVR 70. In that case an intoxicated pedestrian was injured when she ran across the road in front of a car. Apportionment was in issue. Kirby P and Clarke JA upheld the trial judge's apportionment. Handley JA would have increased the percentage reduction. 105 Kirby P said (at 74) that it could not be said that the pedestrian "deliberately courted danger" because in her state of insobriety her objectively unsafe conduct was not "a deliberate act of negligence on her part". 106 Clarke JA noted (at 77) the submission, founded upon a passage from the speech of Lord Pearce in Miraflores v Livianos (1967) AC 826 at 847-8, that the pedestrian should bear a greater share of responsibility because she deliberately placed herself in a hazardous position. His Honour appeared (at 879) to accept that in principle that could be so, but said (at 79-80) - "But that is not the evidence in this case. Her fault lay in endeavouring to cross the road at a dangerous place when her judgment, and in particular her ability to judge distances, was greatly impaired. Although that conduct should, and in this case did, attract a relatively high level of responsibility it is not the conduct of a person who deliberately sets out to court danger. Although both an intoxicated person who acted carelessly and a person embarking on a deliberate act of negligence would properly be seen to have departed from the objective standard of care that does not mean that they both had failed to comply with that standard to the same extent or that the causative potency, of the failure was the same in each case. The analysis which must be undertaken by a court required to apportion shares of responsibility must necessarily focus upon the facts of the particular case. In some cases it will be appropriate to apply an approach similar to that suggested by Lord Pearce. In others it will have no relevance. In the present case I do not think that, as the respondent's departure from the standard did not flow from any deliberate action, the approach should be followed. Senior counsel for the appellant submitted that the respondent should be treated as a person who did deliberately embark on an act of negligence. Although he conceded that the evidence did not establish that she had acted in that manner he submitted that she should be treated as though she had. Otherwise, he submitted, the law would enable her to take advantage of her own insobriety. Put another way the submission was that if a sober pedestrian had deliberately walked out in front of the appellant's vehicle her conduct would have attracted the approach articulated by Lord Pearce and the respondent, whose inability to judge was brought about by intoxication resulting from her voluntary actions, should not be seen to be placed in an advantaged situation as a result of that intoxication.

There are, it seems to me, two fundamental flaws with this submission. In the first place a sober pedestrian may have walked in front of the appellant's vehicle when it was dangerous to do so simply because she failed to keep a proper lookout or was not concentrating. That would not be a deliberate act of negligence. Secondly to treat the respondent as a sober person who made a deliberate decision is to act contrary to the facts. In both instances there is negligence in the sense that there has been a departure from the standard of reasonable care. But the allocation of responsibility for the damage, to use the words of s10 of the Law Reform (Miscellaneous Provisions) Act 1965 will depend upon an evaluation of the facts in each case and not upon the application of an artificial rule under which a careless intoxicated person is deemed to be sober and to have deliberately courted danger." 107 The pedestrian's responsibility was less because her impairment made her conduct less than a deliberate act of negligence. In speaking of a deliberate act of negligence, Clarke JA plainly enough meant acting with awareness of departure from the standard of care of the reasonable man, as distinct from failing to keep a proper lookout or not concentrating. That relevance can operate in either direction is shown by the dissenting view of Handley JA, who saw the pedestrian's intoxication as increasing her share of responsibility because it induced her careless conduct (at 87). 108 Just as the pedestrian's intoxication could be taken into account, because it was one of the facts in the case and could ameliorate her culpability and the causal potency of her contributory negligence, so can the appellant's intoxication be taken into account as part of the circumstances in which the appellant put Mr Brown in the driver's seat. His conduct was that of a man who, in his intoxicated condition, acted impulsively and without full consideration of what might occur. I do not think that anything in s 138(2) of the MAC Act or s 5R of the CL Act has displaced the reasoning of Clarke JA, with which Kirby P must have agreed. It should be noted that in Nicholson v Nicholson a finding of contributory negligence as directed by s 74(2) of the MA Act did not compel a just and equitable reduction. 109 The judge appears to have regarded the appellant as having engaged in a deliberate act of negligence. No doubt because the appellant's case was pitched at the level of incapacity, he appears not to have addressed the lesser case within it. In my opinion, to this extent appealable error has been shown. 110 In many cases, the plaintiff's intoxication will not ameliorate his culpability or the causal potency of his contributory negligence. The further enquiry must be into the circumstances in which the plaintiff became intoxicated. A plaintiff who goes on a drinking spree with the driver, contemplating from the beginning that he will be a passenger in a vehicle driven by the driver, will only add to his departure from the standard of care of the reasonable man. A plaintiff who becomes intoxicated when being the passenger of an intoxicated driver is not in contemplation can say that his departure from the standard of care of the reasonable man is not complete, and perhaps that his conduct was less important in causing the damage. Although in a different context, such an enquiry underlies the dicta of Macrossan CJ in McPherson v Whitfield and of Lee J at 484-5 in the same case. 111 In the present case Mr Coles' house seems to have been within walking distance of the appellant's house, and the drinking was done without any driving or riding in contemplation. On the other hand, the appellant let himself get into a thoroughly intoxicated condition which, on any consideration before he did so, would have been seen as inimical to any rational and well thought out decision, whether as to riding the motor cycle or anything else. Deliberate drinking to the point of severe intoxication exposed him to acting impulsively and without full consideration of what might occur, which happened to occur in relation to riding the motor cycle. The departure from the standard of care of the reasonable man at this point can not be ignored in the degree of departure in putting Mr Brown in the driver's seat. 112 I do not think the justice and equity of the reduction in damages is, in these circumstances, significantly moved in the appellant's favour. He did put Mr Brown in the driver's seat, knowing that he was unlicensed, inexperienced and intoxicated; and acting irrationally and without well thought out decision was to be expected when he began and maintained his drinking. In my opinion, the just and equitable reduction in all the circumstances is 80 per cent.

The result in the appeal 113 The judge ordered that there be judgment for the respondent and judgments for the cross-defendants on the cross-claims, and made orders for costs. The costs orders included that the respondent pay the appellant's costs on an indemnity basis occasioned by proving that Mr Brown was the rider of the motor cycle at the time the appellant was injured. There is no occasion to disturb this order, but all the other orders must be set aside. 114 This Court can not make an order disposing of the substantive claim and cross-claims, since the "issues relating to s 39(1) and the defence of circuity of action" remain for decision. The appellant and the respondent undertook, subject to any appeal to the High Court, to accept and be bound by the finding of this Court on the question of apportionment between them. The proceedings should be remitted to the District Court for further hearing accordingly. 115 The appellant and the respondent differed as to substituted orders for the costs of the trial. This Court can not make substituted orders, since the result of the trial is not yet known, and those costs must be left for disposal by the judge who conducts the further hearing. As to the costs of the appeal, it was agreed that, if the percentage reduction were reduced, the respondent should pay the appellant's costs of the appeal. 116 I think it proper to make the following observations. 117 The appellant's reply as to Mr Brown riding the motor cycle without the appellant's authority does not seem maintainable once involuntariness has been abandoned, and the reply concerning registration of the motor cycle appears difficult to maintain. The defence of circuity of action may nonetheless not succeed, see Andrews v Nominal Defendant [1963] SR (NSW) 110; Imperial Furniture Pty Ltd v Automotive Fire Sprinklers Pty Ltd [1967] 1 NSWR 29. These are observations without the benefit of submissions, and open to error accordingly, but if they are correct there will be left the appellant's cross-claim against Mr Brown. Whatever its validity in fact and law, it does not seem likely that Mr Brown will be able to pay much, if anything at all, in satisfaction of a judgment against him. Again, this is an observation without proper knowledge, but a readily available inference. 118 It behoves the parties to give careful consideration to whether the expenditure of more money in costs is warranted, and whether some conclusion to these proceedings other than more hearings, decisions and possibly appeals can be found. 119 I propose the orders -

1. Grant leave to the appellant to join Aaron Brown as respondent; dispense with service of the notice of appeal and appeal books upon him.

3. Set aside the orders of Cooper ADCJ made following publication of his reasons on 8 July 2004, save as to the order as to the costs occasioned by proving that Mr Brown was the rider of the motor cycle at the time the plaintiff was injured.

4. Remit the proceedings to the District Court for further hearing.

5. Save as to the costs the subject of the order mentioned in 3, costs of the trial before Cooper ADCJ to be paid as ordered by the judge conducting the further hearing.

6. Respondent to pay the appellant's costs of the appeal. 120 STEIN AJA: I agree with Giles JA. 121 GZELL J: I agree. **********

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