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.