Mitchell Green v The Nominal Defendant Twilia Rose Campbell v The Nominal Defendant James Golding v The Nominal Defendant

District Court of NSW|2012-03-26|Before: Mr J, Mr P

Judgment 1Between 11.30 pm and midnight on 16 October 2008 eight young persons entered a Toyota Lexcen station wagon with the intention of travelling from Tingha to Inverell, a distance of about 25 kilometres. Shortly after 1 am on 17 October 2008 the car ran off the Old Bundarra Road at a point about two kilometres south of Inverell. It crashed into a power pole before coming to rest against a roadside fence. 2Three of the passengers in the car were very seriously injured. They claimed for compensation against the Nominal Defendant because the car was not registered at the time of the accident. 3The Court was asked to deal only with the liability aspects of their claims. This involved consideration of the questions of whether, in the circumstances in which the accident occurred, the defendant owed the plaintiffs a duty of care and if so, whether the duty of care was breached. It also involved issues of contributory negligence.

The circumstances of the accident 4Many of the facts concerning the background to the accident were not in issue. The eight occupants of the car all spent the evening at the Tingha Royal Hotel where a pool competition took place. Some participated in the competition. All drank alcohol. The driver of the car, Samuel Campbell (also known as Samuel Golding) and Christopher Naylor smoked some marihuana. 5Four of the occupants Mr Campbell, Twilia Campbell, James Golding and Mitchell Green travelled from Inverell in the car to Tingha with the express purpose of going to the Hotel for the pool competition. Mr Naylor, Kayleeta Blacklock, Tara Jerrard and Guy Grills met the other four at the Hotel and travelled back towards Inverell in the car with them. 6Twilia Campbell was the twin sister of Samuel Campbell. James Golding was Mr Campbell's half brother and Mr Green was his cousin. Ms Campbell, Mr Golding and Mr Green were the plaintiffs in the proceedings. 7Mr David Blacklock drove to Tingha. Mr Samuel Campbell drove back towards Inverell. Mr Naylor sat in the front passenger seat. Ms Campbell sat in the rear passenger seat behind Mr Naylor. Mr Grills sat in the centre of the rear passenger seat with Ms Blacklock seated on his lap. Ms Jerrard sat in the rear passenger seat behind the driver. Mr Golding and Mr Green sat in the rear cargo area of the station wagon, Mr Golding on the driver's side and Mr Green on the passenger's side. 8Within a few minutes of leaving Tingha, the car was stopped at Hospital Flat Road where Mr Naylor lived with his girlfriend. Estimates of the time spent there varied between five to ten minutes to one hour. Some of the witnesses said that alcohol was drunk there; others said there was no alcohol. The evidence of who, among the group, left the car at Hospital Flat Road was also disparate. Some said only Mr Naylor left the car, some said Mr Naylor and Mr Campbell left the car, some said it was Mr Naylor and Ms Campbell. Some could not remember. 9The car was stopped a second time after hitting a kangaroo. The impact with the kangaroo broke a front headlight. Mr Campbell left the car to check the damage. He picked up the dead kangaroo and placed it on the roof of the car. Again, there were differing accounts of who, if anyone, also left the car. Ms Blacklock said Ms Campbell left the car at her request because she was intending to get out to go to the toilet but then changed her mind. In a statement (Exhibit 12) dated 25 November 2008 Ms Campbell stated that she got out to examine the car for damage. 10After a further distance and on coming around a right hand bend in Old Bundarra Road, Mr Campbell lost control of the car. It ran off to the left of the road onto gravel and the grass verge, turned clockwise approximately 90 degrees and slid for a distance that police estimated to be 80 metres. It then hit a power pole and spun 360 degrees before coming to rest against the roadside fence. 11Mr Campbell said that he lost control when, after cutting the corner, he saw the lights of an oncoming car and swerved to avoid it. Others in the car suggested that the headlights of the oncoming car were on high beam and that the glare of the light coupled with condensation on the windscreen of the car made it difficult for Mr Campbell to see. 12The speed limit in the area where the accident occurred was 80 kph. There was no precise evidence of the speed at which the car was travelling at the time it left the road. A number of the occupants of the car said they were travelling at speed. An eye-witness, Mr Moran, estimated the speed at 100 kph. Mr McKenzie, another eye-witness, provided a statement (Exhibit 13) to police in which he estimated the speed at 150 kph. Mr McKenzie was not available for cross examination. Neither of these witnesses held any particular expertise that qualified them to calculate the speed of motor vehicles, although Mr Moran was not challenged concerning his assessment of a speed of 100 kph.

Duty of Care 13The defendant's claim that no duty of care was owed focussed upon the extent to which the occupants of the car, all of whom had been drinking alcohol, gave any consideration to Mr Campbell's capacity to drive. In the case of Mr Green and Mr Mitchell, there were the added considerations of their election to travel in the cargo area of the car without seatbelts and, in the case of Ms Campbell, the allegation that she failed to wear a seatbelt. No issue was raised concerning Mr Campbell's use of marihuana prior to the accident. 14The defendant relied on four decisions of the High Court: The Insurance Commissioner v Joyce (1948) 77 CLR 39; Joslyn v Berryman (2003) 214 CLR 552; Imbree v McNeilly [2008] HCA 40; Miller v Miller [2011] HCA 9. 15Joyce involved a motor vehicle accident in which it was accepted that both the driver and the injured passenger were considerably affected by alcohol. Neither the driver nor the plaintiff gave evidence at the hearing. Chief Justice Latham said it was for the plaintiff to establish affirmatively that his injuries were caused by the negligence of the driver. He held that the plaintiff failed because there were three inferences available from the facts, all equally consistent. They were contributory negligence, voluntary assumption of the risk or the defendant's negligence. 16Justice Dixon at p. 54 said that it was for the defendant to establish the special facts that it considered displaced the prima-facie duty of care. 17At p.58 he said: Contributory negligence certainly includes failure to adopt reasonable precautions or a reasonable course of action to avoid the consequences or risks which the defendant's negligence sets up. 18In Joslyn Justice McHugh said: The plea of no breach of duty - perhaps even a plea of no duty in an extreme case - is still open in the case of a passenger who accepts a lift with a driver known to the passenger to be seriously intoxicated. (at p. 563 [29]) (emphasis added) 19He cited the following from Gala v Preston (1991) 172 CLR 243 at 254: Each of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care. (emphasis added) 20Justice McHugh went on to question whether, having rejected the doctrine of proximity, the High Court would no longer follow the reasoning in Gala and Cook v Cook (1986) 162 CLR 376. He noted that the premise that a standard of care fluctuated with the sobriety of the driver was difficult for tribunals of fact to deal with but that these decisions, while they stood, were authorities for: ...the proposition that, in special and exceptional circumstances, it would be unreasonable to fix the standard of care owed by the driver by reference to the ordinary standard of care owed by a driver to a passenger. In some cases, knowledge by a passenger that the driver's ability to drive is impaired by alcohol may transform the relationship between them into such a category. [40] (emphasis added) 21The High Court has since reconsidered the decisions in Cook and Gala. 22In Imbree v McNeilly (2008) HCA 40, the Court in declining to follow Cook, dealt with the question of whether the standard of care varied according to the competence of the driver, in this case, an inexperienced driver. Chief Justice Gleeson said: It was not suggested in this case (or in Cook v Cook or in Nettleship v Weston) that the negligence of the driver consisted in undertaking the driving in the first place. There may be circumstances in which a person who takes control of a motor car is so lacking in competence that the act of taking control is itself negligent. Where that would leave an instructor, or supervisor, or other passenger, who directed or permitted the act is not the present problem. According to circumstances, it could mean that there is no duty of care, or voluntary assumption of risk, or a high degree of contributory negligence, or an absence of causation.[7] 23Gummow, Hayne and Kiefel JJ said: The conclusion that the defendant owed a plaintiff no duty of care is open in a case like Joyce if, as Latham CJ said, '[in] the case of the drunken driver, all standards of care are ignored [because the] drunken driver cannot even be expected to act sensibly. And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver. [82] (emphasis added) 24In Miller v Miller [2011] HCA 9 the High Court reconsidered and maintained the principles established in Gala. The plaintiff in that case stole a car and allowed the defendant to drive it. She was subsequently injured as a result of his negligent driving. The issue was whether the defendant owed her a duty of care when they were engaged in a joint illegal enterprise. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ summarised the position: 64.Joyce concerned a gratuitous passenger accepting carriage in a vehicle driven by a person known by the passenger to be drunk. In Joyce Dixon J offered three possible bases for concluding that the passenger's action should fail: no breach of duty, voluntary assumption of risk and contributory negligence (then a complete defence). Of them, Dixon J preferred the first form of analysis. As the plurality in Imbree said, the conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if the drunken driver cannot be expected to act sensibly (an idea that would also underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver). And as Windeyer J said in Smith v Jenkins, a conclusion that one illegal user owes no duty of care to a confederate 'can be regarded as founded on the negation of duty, or on some extension of the rule volenti non fit injuria, or simply on the refusal of the courts to aid wrongdoers'. But as is implicit in what was said in all three cases (Joyce, Smith v Jenkins and Imbree) the question whether A owes B a duty to take reasonable care is not to be answered by reference only to whether A was the driver of and B a passenger in a motor vehicle. A duty of care arises from the 'relations, juxtapositions, situations or conduct or activities' in question. All aspects of the relations between the parties must be considered. 65.Other members of the Court in Gala v Preston (Brennan, Dawson and Toohey JJ) analysed the matter in separate reasons in ways that differed in important respects from the reasoning adopted by the plurality. For Brennan J, the decisive point was that to admit a duty of care would destroy the 'normative influence' of the statutory provision which made the illegal use of a vehicle a crime. The destruction of 'normative influence' was said to occur where the effect of admitting a duty of care would be to 'condone' a breach of the criminal law. But introducing the notion of 'condonation' into the debate does not cast light upon the problem. Rather, it is important to observe the way in which Brennan J sought to identify when the admitting of a duty care may 'condone' a breach of the criminal law. It was said to depend on the 'nature of the offence'. (citations omitted) 25The plurality referred to a concept of incongruity in dealing with the question of why courts should not regulate the activities of wrongdoers by requiring the driver to exercise reasonable care for the safety of other road users and passengers, whether or not the passenger is complicit in the crime. The answer, they said, was whether it was: ... incongruous for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all. [73] 26They concluded that careful consideration must be given to the purposes of a statute that has been contravened and that: It will be by reference to the relevant statute, and identification of its purposes, that any incongruity contrariety or lack of coherence denying the existence of a duty of care will be found. [74]

Incongruity 27These authorities confirm that in appropriate circumstances it may be open to a court to decide that the level of culpability of a plaintiff who travels in a vehicle with a driver whose capacity to drive is impaired by alcohol or some other drug is such that it would be incongruous to permit that plaintiff to claim that the driver owes her or him a duty of care. 28Justice Dixon in Joyce said that the onus was on the defendant to establish that special facts existed to displace the prima-facie duty of care. In the same case, Chief Justice Latham referred to situation where a drunken driver cannot even be expected to act sensibly. Justice McHugh in Joslyn said there needed to be an extreme case or facts that established special and exceptional circumstances. 29It was necessary therefore to examine the evidence to determine the extent to which it could fairly be held that the facts and circumstances in this case were so special and exceptional that they were extreme and that: 1the plaintiffs could not have had any reasonable basis for expecting that Mr Campbell would drive the vehicle according to ordinary standards of competence and care; or 2Mr Campbell was so drunk that he could not be expected to act sensibly; or 3it would be incongruous, having regard to legislation that provided that a person committed a crime by driving while his or her capacity to drive was impaired by the effects of alcohol, to allow a passenger who knowingly accompanied that driver to claim that the driver owed the passenger a duty to drive it carefully when the driver should not be driving at all; or 3it would be incongruous, having regard to regulations that provide that a person committed an offence by failing to occupy a passenger seat or wear a seat belt, to allow that passenger to claim that the driver owed the person a duty to drive carefully when the she or he failed to pay attention to her or his own safety. 30In no authority to which I was referred was it suggested that the failure to wear a seat belt should be regarded as a special or extreme circumstance. I have concentrated therefore on the evidence concerning the effect of the consumption of alcohol by the plaintiffs and Mr Campbell immediately prior to the accident. 31In summary the evidence was: 1Mr Campbell's blood alcohol content was 0.09g/100 ml. At this level he breached the law by driving the car but it did not suggest an extreme level of intoxication. 2Although Mr Green and Mr Golding gave no evidence of their observations of Mr Campbell's capacity to drive, other witnesses were able to describe their observations. 3Their observations before they left Tingha for the journey back to Inverell were: (a)Ms Blacklock talked with Mr Campbell as they walked to the car. She said his speech was not slurred, he did not stumble, he was not uncoordinated or irritable. She said he talked a lot, but he always did. He had no difficulty understanding what she said to him. (b)Ms Jerrard saw nothing before they left the hotel that made her think that Mr Campbell was drunk. She saw nothing to indicate that he was not capable of driving when they walked 200 metres from the hotel to the car. (c)Mr Grills said he thought Mr Campbell was pissed when they left the hotel. He described him as: Just like when people have a few beers and that, talk up and, yeah. (Transcript 138.37). He said that before Mr Campbell got into the car a conversation took place between him and Ms Campbell about who was to drive. In his statement to police (Exhibit 6) Mr Grills said that Mr Campbell said: Look Twlar, (sic) I'll drive. I'll take it slow. (d)Ms Campbell said that she got out of the car after it hit the kangaroo and had a conversation with Mr Campbell in which she asked if she could drive. She said: He was arguing so I let it go. (Transcript 278.37) She subsequently said that she could not remember if this conversation took place at the hotel or after they hit the kangaroo. She agreed that she thought it would be better for her to drive because she had less to drink than Mr Campbell and because she was worried that he had so much to drink that it might be dangerous for him to drive. 4Their observations In the course of the journey were: (a)Ms Blacklock was not concerned by Mr Campbell's driving. She said it was not erratic. He could have been speeding but she did not know. She told an investigator that he was driving pretty fast. She told the court that the speed did not concern her. (b)Mr Naylor thought they were travelling fast or cruising. (c)Ms Jerrard saw nothing when the car hit the kangaroo to indicate that Mr Campbell was not capable of driving. There was nothing untoward in his driving and nothing that concerned her, even when they were travelling on the unsealed part of the road. (d)Ms Campbell said that she had no concerns about Mr Campbell's driving at any stage of the journey. Ms Campbell claimed that she did not remember answers to questions that were recorded by an investigator, one of which was that Mr Campbell was driving fast, although she was not sure how fast. 32Mr Moran spoke with Mr Campbell immediately after the accident. He described him as very upset and hysterical. He noticed nothing that suggested to him that Mr Campbell was drunk. 33Two police officers gave evidence of their observations of Mr Campbell after the accident. Senior Constable Kelson said his eyes were bloodshot, he was unsteady on his feet and he smelled of alcohol. She agreed that in her post accident statement she described Mr Campbell as hysterical, very upset and crying. She said he was running around and putting his hands to his head. Senior Constable Foley said Mr Campbell was visibly upset, his speech was slurred, he was distressed and he smelled strongly of alcohol. He did not observe that his eyes were bloodshot or that he was unsteady on his feet. Senior Constable Foley agreed that the slurred speech ceased later that night and that Mr Campbell was less visibly upset and distressed at the time he undertook a blood test that resulted in a finding of a blood alcohol content of 0.09g/100 ml. 34Professor Starmer noted that Mr Campbell told police that he did not drink often and that he was 19 years old at the time of the accident. He said signs of intoxication were more obvious in his age group when the blood alcohol content reached .08g/100ml. He also noted that the police recorded observations of blood shot eyes, slurred speech, the smell of alcohol and unsteadiness on his feet. 35Clearly the purpose of the legislation is the protection of road users. No criminal penalty is imposed on passengers who travel in a vehicle with a driver who is affected by alcohol. In that sense there was no joint illegal activity. 36Mr Sexton SC argued that Joyce was not authority for the principle that there might be circumstances in which a driver owed no duty of care to a passenger and that, in any event, s 141 of the Motor Accidents Compensation Act 1999 displaced any such principle. I accepted that Dixon J decided Joyce on the basis that there was a breach of duty in respect of which considerations of contributory negligence and voluntary assumption of risk arose. He was in the minority in that case. 37Regardless of the proper reading of the judgments of Latham CJ and Rich J in Joyce, the extracts that I have cited from subsequent decisions made it clear that the High Court accepted that there might be circumstances in which a driver owed no duty of care to a passenger. 38I did not agree that s 141 of the Act altered the law in this respect. It deals with the standard of care required of a driver who owes another person a duty of care. This in my view, made it apparent, that there must first be a finding of duty of care, before the provisions of the section were to be applied. 39On the other hand, s 138 of the Motor Accidents Compensation Act 1999 makes it clear that commission of an alcohol related criminal offence in relation to driving does not necessarily disqualify even a driver from recovering compensation for injury. Failure to wear a seat belt is also expressly provided for in s 138. 40The requirement under s 138 is that damages by reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (s 138(3)). 41Of the effects that Professor Starmer thought would be evident, only loquacity was reported by the witnesses who were with Mr Campbell prior to the accident. None of them reported slurred speech, loss of coordination, unsteady gait, nystagmus, flushed face, irritability, impaired attention, fine motor control or gross motor control. Aside from driving at speed, none of them reported behaviour on the part of Mr Campbell in the car itself that indicated that his capacity to drive was impaired. The slurred speech and unsteady gait reported by the police officers were equally consistent with the consumption of alcohol and Mr Campbell's distressed state immediately after the accident. 42I took into account these facts, the authorities and the legislation in concluding that it had not been established that this was an extreme case where there were special and exceptional circumstances or where Mr Campbell was so affected by his consumption of alcohol that he could not even have been expected to act sensibly. 43I decided that Mr Campbell's duty of care to the plaintiffs was not displaced by the circumstances in which the accident occurred and that the extent to which the plaintiffs in this case placed themselves in positions of peril was to be determined by reference to the principles of contributory negligence.

BREACH OF DUTY 44The speedometer in the car was not functioning and Mr Campbell said he did not know how fast he was driving when the car left the road. 45I have already noted that a number of his passengers reported that he was driving fast and Mr Moran and Mr McKenzie estimated his speed at between 100 kph and 150 kph. I concluded from this material that Mr Campbell was driving at greater than the speed limit of 80 kph at the time the car ran off the road. 46Further, although the effects on Mr Campbell of the alcohol he consumed during the evening were not so obvious that they amounted to an extreme case, I considered that in circumstances where he drank infrequently and his blood alcohol content was 0.09g/100 ml, the effect of alcohol had the disinhibiting effect reported by Professor Starmer so that it affected the speed at which he drove the vehicle and it affected his resistance to glare from the oncoming lights of Mr Moran's car. 47I determined that the factors of speed and alcohol were the cause of the accident to the point where Mr Campbell was not able to maintain control of the car. 48I decided Mr Campbell breached his duty of care to his passengers in driving at speed and while his capacity to drive was impaired by the extent to which he consumed alcohol.

Twilia Campbell 49There were four aspects to the defence of contributory negligence in Ms Campbell's case: 1Ms Campbell was aware at the time of the accident that Mr Campbell was unlicensed and that he was therefore an inexperienced driver. 2Ms Campbell was aware that the car was not registered. 3Ms Campbell did not seek to exit the car during the course of the journey, did not ask Mr Campbell to slow down, or warn him against driving after the consumption of alcohol. 2Ms Campbell was a voluntary passenger in the car when she was aware or ought to have been aware that Mr Campbell's ability to drive the car was impaired as a consequence of the consumption of alcohol. 3Ms Campbell failed to wear a seat belt.

Licence and Registration 50Ms Campbell agreed that she knew that Mr Campbell was unlicensed and that he had never held a licence. 51As to his driving experience, Mr Campbell said he started driving when he was 10 years old that he had driven a variety of motor vehicles, manual and automatic, on unsealed farm roads and grass paddocks as well as urban streets both during the day and at night. Ms Campbell, his twin sister, was aware of the extent of this experience. 52Ms Campbell also agreed that she was aware that the car was not registered.

Alcohol 53Mr Campbell's blood alcohol content was conservatively estimated to have been 0.09 g/100 ml at the time of the accident. This established that he consumed more than the legal limit of alcohol. 54I have already dealt with the observations of various witnesses concerning the extent to which Mr Campbell displayed overt signs of intoxication. Although I noted that the witnesses reported few of the potential signs of intoxication identified by Professor Starmer, I decided that this element of the defence of contributory negligence was established for two reasons. 55The first was that Ms Campbell knew that she and her companions intended to consume alcohol at the hotel in Tingha. They gave no thought to the appointment of a designated driver or to making arrangements to deal with the contingency that none of them was legally capable to driving back to Inverell at the end of the evening. 56The second was that I was satisfied that the defendant established that Ms Campbell ought to have been aware that Mr Campbell's capacity to drive the car was impaired as a consequence of his consumption of alcohol. 57Ms Campbell said she did not spend the whole of the evening with Mr Campbell and did not observe the amount of alcohol he consumed. I did not accept that simply because she did not observe or count the number of drinks that he consumed, Ms Campbell was not or ought not to have been aware of the extent to which Mr Campbell's capacity to drive was impaired by the consumption of alcohol. This was particularly the case when she was aware that he had been at the hotel for between four and five hours and that a central part of the evening's entertainment involved the consumption of alcohol. 58The evidence of her conversation with Mr Campbell during which she asked if she might drive the car indicated that this inquiry was made out of concern that his capacity to drive might be impaired by his consumption of alcohol. She did not press for control of the car when he became argumentative about it. 59There was no suggestion that Ms Campbell otherwise checked with Mr Campbell the quantity of alcohol he consumed in order to determine whether it was safe to travel in the car that he was driving. 60It was not claimed that Ms Campbell could not reasonably have been expected to decline to become a passenger in the car. She and Mr Campbell had family members living in Tingha. They did not consider the question of whether they might stay overnight at their premises.

Seat Belt 61It was also contended on Ms Campbell's behalf that it was not established that she was not wearing a seat belt at the time of the accident. Ms Campbell and Mr Grills said that she had her seat belt on. Mr Griffiths, the expert relied on by the defendant, said that Ms Campbell would not have been ejected from the car if she had been wearing a seat belt. The issue then to be determined was whether Ms Campbell was in fact ejected from the car. 62In cross examination Ms Campbell was asked: QSee what I want to suggest to you is at the time of the accident you were thrown out of the car, weren't you? AYes. (Transcript 294.50) 63In a statement (Exhibit 16) provided to an investigator she was asked: Qu.68:Were you trapped in the vehicle at the time of the accident. A:Um, no I got ejected. 64In a statement (Exhibit 12) she said: [6]... I got thrown out of the car onto the grass near a fence. I was just lying on the ground and I couldn't move. 65Her statement of claim listed the following injuries: left femoral fracture multiple pelvic fractures fracture of the sacroiliac joint injury to the thoracolumbar spine injury to the lumbosacral spine 66It was very apparent that with injuries of this nature it would not have been possible for Ms Campbell to walk from the car to the position in which she was found by a number of witnesses after the accident. Ms Campbell herself at no stage said that she walked from the car. 67Mr Naylor said he saw her lying on the ground five to ten metres from the car. He tried to help her up but she could not move. There was no evidence that Ms Jerrard suffered any loss of consciousness as a result of the accident. Thus there was no period during which Ms Jerrard would not have observed that Ms Campbell walked or was assisted from the car. Ms Jerrard said that after the accident only she and Mr Naylor were in the car. She heard Ms Campbell calling out. After Mr Naylor helped her to undo her seatbelt she left the car through the open left rear passenger door. 68Ms Blacklock said her first memory after the accident was of waking up on the ground a few metres from the car, off the road. Ms Campbell was further away from her, near the fence. Mr Grills woke up on the grass, face down, about five to ten metres from the car. He did not know how he got out of the car. Ms Blacklock was lying in front of him. He said Ms Campbell was positioned against the fence further away. In a statement (Exhibit 6) Mr Grills said that Ms Jerrard and Ms Blacklock went to assist Ms Campbell who was lying near the fence. She was moving and complaining that her legs hurt. 69Mr McKenzie witnessed the accident from the opposite side of Old Bundarra Road. He was not available for cross examination but his statement (Exhibit 13) was in evidence. He said: [6]I saw a woman thrown from the car and she landed on the grass near the telephone pole. [8]I saw another woman from the car and she went to the woman that was lying on the grass. There was another woman from the car too. There was three women in the car. [11]The woman that got thrown from the car was near the fence and she had a blanket around her. 70Senior Constable Kelson prepared a diagram in her police notebook in which she indicated that Ms Jerrard and Ms Campbell were sitting near the fence on the Tingha side of the power pole. She said she could not remember where they were in relation to the pole or how far Ms Campbell was from the car. 71Only Mr Moran suggested that Ms Campbell was in a position away from the fence. He said he saw two males come out of the back of the car. It was evident that they were Mr Green and Mr Golding. He then noticed a young girl lying near the person lying in the ditch, screaming and in agony. He said he saw no-one move her. He initially said she was about five to ten metres behind the resting position of the car. Asked to point to her position on photograph 14 (exhibit 4) he pointed to a position on the road, rather than the fence, side of the car. Since this position that was inconsistent with that described by all other witnesses, I concluded that this was a mistake on Mr Moran's part. 72It was argued on Ms Campbell's behalf that Mr Moran or Mr McKenzie, who were in the best position to witness the accident, did not report that Ms Campbell was ejected from the car. I accepted that there was ambiguity in Mr McKenzie's statement as to whether he witnessed the ejection of Ms Campbell or Ms Blacklock from the car. I did not accept that this established that Ms Campbell was not ejected from the car. 73Mr Griffiths agreed that it was improbable that Ms Blacklock and Mr Grills were ejected through the rear door of the car. This meant that they must have been thrown from the left rear passenger door after Ms Campbell was ejected. 74In my view the evidence that Ms Campbell was ejected from the car was overwhelming. I accepted therefore that she was not wearing a seat belt at the time of the accident. 75My findings in respect of the contributory negligence claimed against Ms Campbell were: 1Ms Campbell travelled in a car with Mr Campbell knowing that he held no licence and that the car was not registered. It was not established that inexperience on the part of Mr Campbell or the absence of registration of the vehicle contributed to any degree to the damage suffered by Ms Campbell. I therefore disregarded these aspects of the defence of contributory negligence in assessing the percentage by which her damages were to be reduced. 2Ms Campbell knew or ought to have known that Mr Campbell's capacity to drive was impaired by his consumption of alcohol. 3She was ejected from the car. 4She was ejected from the car because she was not wearing a seat belt.

James Golding and Mitchell Green 76The allegations of contributory negligence brought against Mr Golding and Mr Green were essentially similar to those brought against Ms Campbell with the added feature that they travelled in the cargo compartment at the rear of the car rather than in a seating position that was fitted with a seat belt. 77Neither Mr Golding or Mr Green gave evidence. Mr Sexton SC explained that the nature of their injuries diminished their capacity to deal with the process of giving evidence. This was regrettable because it left much to inference. I was reminded that the principle established in Jones v Dunkel (1959) 101 CLR 298 did not permit the court to draw an inference adverse to the plaintiffs by reason of their failure to give evidence. It did not, however, prevent the drawing of inferences that were fairly available from such evidence as was before the court.

Licence 78The defendant relied on the family connection between the plaintiffs and Mr Campbell to suggest that they probably knew that he had never been licensed to drive, that he was inexperienced and that the car was not registered. I did not think that this inference could be drawn and I was therefore not satisfied that this element of the claim of contributory negligence on the part of Mr Golding and Mr Green was made out.

Alcohol 79I saw no reason to arrive at a conclusion different to that already expressed in respect of Ms Campbell in finding that this element of the defence of contributory negligence was established. 80Mr Green and Mr Golding also failed to address the question of how they were to return safely to Inverell by appointing a designated driver or arranging overnight accommodation. 81They also spent the evening in the same environment as Mr Campbell where alcohol was consumed over an extended period. It was not suggested by any witness that either Mr Golding or Mr Green questioned Mr Campbell to check the amount of alcohol he consumed or whether he was capable of driving them safely back to Inverell.

Seat Belts and Seating 82There was no issue that Mr Golding and Mr Green did not wear seat belts and did not occupy seats within the car. 83My findings in respect of the contributory negligence claimed against Mr Golding and Mr Green were: 1It was not established that Mr Golding or Mr Green were aware that Mr Campbell was unlicensed or inexperienced or that the car was not registered. 2Mr Golding and Mr Green knew or ought to have known that Mr Campbell's capacity to drive was impaired by his consumption of alcohol. 3Mr Golding and Mr Green did not occupy passenger seats within the car. 4Mr Golding and Mr Green did not wear seat belts.

84I was taken to a substantial number of decisions of single instance judges and appeal courts in which the issue of the assessment of the appropriate percentage reduction was debated. Those authorities dealt with a considerable variety of circumstances in which such an assessment was required. Counsel for the plaintiffs properly acknowledged that they mostly depended upon their own facts but they relied upon them as indicators that, in the case of these three plaintiffs, the extent of their contributory negligence was not such that percentage reductions suggested by the defendant of 80% to 100% were warranted. 85I accepted that those authorities established: 1Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR remained authority for the principle that the causative potency of the act or acts of negligence of the driver and the passenger must be taken into account in determining the proportions in which they are to be held responsible for the passenger's loss and damage. 2It must be established that the contributory negligence was causative of the plaintiff's loss or damage. 86I did not accept, as contended by the defendant, that the failure to wear a seat belt alone compelled an assessment of greater than 50%. 87A further area of contention arose from Mr Griffith's expression of absolute conviction that, if properly seated and restrained by seat belts, the plaintiffs would have suffered minimal injury. He based this opinion on the fact that Mr Naylor and Ms Jerrard wore their seat belts, were not ejected from the car and suffered only seat belt bruising and scratches. 88I agreed that there was some merit in this aspect of the plaintiffs' criticism of Mr Griffiths' opinions. Mr Naylor and Ms Jerrard were not seated in the area where the impact with the power pole took place. Mr Grills and Ms Blacklock were similarly shielded and, although they were thrown from the car, their injuries were minimal. Mr Griffith agreed with several propositions that indicated that rear seat passengers, even if wearing seat belts, were vulnerable to injury. 89I proceeded with my assessment therefore on the basis that it was necessary that I be persuaded that the injuries suffered by the plaintiffs as a result of being ejected from the car were more severe than those that would have resulted had they been properly seated and restrained by seat belts.

Ms Campbell 90In assessing the percentage by which Ms Campbell's damages were to be reduced, I was asked to take into account the extent to which it could be said that failure to wear a seat belt caused the serious injuries that she suffered. 91On this issue, Mr Griffiths was criticised as partisan because he did not consider whether her injuries might have been caused within the car regardless of whether she was wearing a seat belt. It was apparent that Mr Griffiths instructions were that Ms Campbell did not wear a seat belt and that he prepared his report on the basis that her injuries were the consequence of her having been ejected from the car. 92The alternative propounded on Ms Campbell's behalf was that the compression fractures that she suffered in her pelvic region were equally consistent with her being forced against the door of the car by the weight of the passengers seated to her right. This proposition was said to be supported by the absence of any evidence from the eye witnesses Mr Moran and Mr McKenzie that they saw the rear left side passenger door open and by the absence of rational explanation of Mr Griffiths' estimate of the post impact difference in velocity between the car and the rear seat occupants of 15 - 25 kph. 93Mr Griffiths did not accept that the injuries suffered by Ms Campbell were the result of in-vehicle impact with the passengers travelling to her right. He agreed that seat belts were primarily designed to provide protection for front on impacts but said they also offered good protection in the case of side impacts. He also agreed that side impact injuries could be significant. He agreed the probability of significant injury was reduced but not eliminated by the wearing of a seat belt. 94He said that a passenger wearing a seat belt who was involved in an accident with side impact was at risk of head injury from collision with the immediately adjacent door pillar and window and from the additional load of any unrestrained left rear occupant. If that occupant was restrained, there was a risk of head clash. 95Mr Griffiths' opinion was that, if they were not wearing seat belts and the door of the car remained closed, in-vehicle impact would most probably have caused injury to Ms Campbell's head or upper body. If Mr Grills was the source of injury to Ms Campbell, he also would have suffered significant injury to his pelvic region. He pointed out that if Ms Campbell was ejected from the car, there would be no resistance on her left and therefore no force from the occupants on her right. 96Mr Griffiths estimated that on impact with the power pole the velocity with which the car was travelling was reduced by 15 to 25 kph. The relevance of this estimate was that Ms Campbell and the other rear seat occupants continued to travel at the original speed of the car. He agreed that their speed could have been as much as 30 kph greater than the car but he did not accept that at this speed Ms Campbell and the other rear seat occupants would have impacted with the door of the car before it opened. This would have occurred, he said, within milliseconds. 97As to whether the door beside which Ms Campbell was seated opened as a result of impact with the power pole Mr Griffiths said: A.Well, I don't think of it so much it was forced open. I think that the - when the pole was pushing into the rear mudguard, that left rear panel, basically as it's pushing in it's pulling the metal panels on either side. So I think that that pulling action disengaged the door mechanism, because it's got the - the four seatbelts, one of the design rules for vehicles was anti-burst door locks, and that was - so door locks are designed to stop the forces of unrestrained people - and this was pre-seatbelt - from hitting a door sideways and forcing it open. ... ...- the best explanation for the mechanism for it opening is that the rear frame of the door was pulled away by the pole pushing into the left rear mudguard, and that is the cause of disengagement of the door locking mechanism. (Transcript 235.23) 98Mr Griffiths offered a wide range in his estimate of the post impact speed of the rear seat passengers. He agreed that the speed could have been up to 5 kph faster than his original estimate. His estimate was based on findings of research into side impact collisions. Only counsel suggested that it was significant to the issues in this case that the research did not concentrate on impacts with the area of vehicles immediately behind the rear passenger door. Mr Griffiths' explanation of the manner in which the rear door opened was rational. 99In the absence of coherent expert evidence that provided a rational basis upon which I could be persuaded that Mr Griffiths' opinions on this aspect were wrong, I was not prepared to reject them. 100I was not persuaded that I should reject Mr Griffiths' opinion on these aspects of the circumstances of the accident. I was left in no doubt that Ms Campbell was ejected from the car. She suffered none of the upper body or head injuries that might be expected from in-car injuries. It followed that, in this particular accident, the force with which she was ejected from the car was the most probable cause of her significant pelvic, leg, hip and spinal injuries. 101For the purpose of assessing the percentage by which Ms Campbell's damages were to be reduced I found: 1Ms Campbell's injuries were the result of her having been ejected from the car. 2While it was not possible to state that, had she worn a seat belt, she would have suffered no injury, I considered it highly probable that the risk and extent of her injuries would have been substantially reduced. 102These factors established both a considerable degree of contributory negligence on the part of Ms Campbell and a causative connection between the negligence and the increased severity of her injuries. 103I decided that her damages should be reduced by 35%. James Golding 104The injuries that were suffered by Mr Golding were listed in his statement of claim as follows: (a)severe closed head injury (b)crush injury C5 (c)multiple left sided rib fracture with left sided pneumothorax (d)shock 105Mr Griffiths said that it was most probable that Mr Golding suffered head injury when he was thrown towards the left rear side of the cargo space of the car when it was virtually stopped on impact with the power pole. His opinion was that this impact would have been sufficient to cause Mr Golding's head and neck injuries. 106While he agreed that rear seated, seat belt restrained passengers in a vehicle might suffer head injury from head clash, Mr Griffiths said it was unlikely in the case of side impact where all of the passengers would be travelling in the same direction. He agreed that a rear seated passenger adjacent to a door of a vehicle could suffer head injury through impact with the door pillar or the window of the car. 107I accepted that, although, hypothetically, it was possible that Mr Golding might have suffered head injury if seated beside a door and restrained by a seat belt, in the circumstances of this particular accident, Mr Golding's injuries were the result of his position, unrestrained, in the rear cargo compartment of the car. This lead to my conclusion that the severity of his injuries was increased as a result of his failure to occupy a passenger seat and to wear a seat belt. 108For the purpose of assessing the percentage by which Mr Golding's damages were to be reduced I found: 1Mr Golding's injuries were the result of his failure to occupy a passenger seat and to wear a seat belt. 2While it was not possible to state that, had he been properly seated in a passenger seat with a seat belt in place, he would have suffered no injury, I considered it highly probable that the risk and extent of his injuries would have been substantially reduced. 109These factors established both a considerable degree of contributory negligence on the part of Mr Golding and a causative connection between the negligence and the increased severity of his injuries. 110I decided that his damages should be reduced by 40%.

Mitchell Green 111The injuries that were suffered by Mr Green were listed in his statement of claim as follows: (a)fracture of the right superior facet of C7 (b)fractures of 8th, 9th and 10th ribs (c)bilateral grade 4 renal injury (d)fracture of the left transverse processes of L1 - 5 with wide separation (e)anterior dislocation of L5 - S1 (e)soft tissue injury to cervical and lumbar spine (f)right sided pneumo-haemothorax (g)liver contusions (h)head injury. 112Mr Griffith noted that Mr Green suffered major impact to his upper torso and violent impact with the lower torso that caused very serious injury to the left side of his lumbar spine. He said the severity of Mr Green's injuries was such that it was probable that he was sitting in the area of intrusion of the pole and that he was injured whilst he was in the cargo compartment. 113It was put to Mr Griffiths that the subluxation injury that Mr Green suffered to his lumbar spine was an injury that could occur where passengers were in seats and restrained by seat belts. Mr Griffiths agreed that this was not medically impossible but said that he had never encountered such an injury in the case of side impact and had not seen reference to it in any motor vehicle injury crash literature. He said, in his experience, the subluxation injury in seated, seat belted passengers was the result of high speed frontal crashes. 114I accepted that, although, hypothetically, it was possible that Mr Green might have suffered subluxation injury to his lumbar spine if seated in a passenger and restrained by a seat belt, in the circumstances of this particular accident, Mr Green's injuries were the result of his position, unrestrained, in the rear cargo compartment of the car. This lead to my conclusion that the severity of his injuries was increased as a result of his failure to occupy a passenger seat and to wear a seat belt. 115For the purpose of assessing the percentage by which Mr Green's damages were to be reduced I found: 1Mr Green's injuries were the result of his failure to occupy a passenger seat and to wear a seat belt. 2While it was not possible to state that, had he been properly seated in a passenger seat with a seat belt in place, he would have suffered no injury, I considered it highly probable that the risk and extent of his injuries would have been substantially reduced. 116These factors established both a considerable degree of contributory negligence on the part of Mr Green and a causative connection between the negligence and the increased severity of his injuries. 117I decided that his damages should be reduced by 40%.

ORDERS 118I find that Mr Campbell owed a duty of care to the plaintiffs, Twilia Campbell, James Golding and Mitchell Green and that his breach of that duty of care caused the accident that occurred on 17 October 2008.. 119I find that there was contributory negligence on the part of each of the plaintiffs. 120Ms Campbell's damages are to be reduced by 35% to take account of her contributory negligence. 121Mr Golding's damages are to be reduced by 40% to take account of his contributory negligence. 122Mr Green's damages are to be reduced by 40% to take account of his contributory negligence. 123The exhibits will be retained pending the outcome of the balance of the proceedings. 124The parties are to agree on short minutes addressing the judgment and any ancillary orders and to submit those short minutes by consent by 4 pm on Monday, 30 April 2012. 125If the parties are unable to agree upon the terms of the short minues, they are to exchange and submit written submissions concerning the issues in dispute by 4 pm on Monday, 30 April 2012. Any submissions in reply are to be forwarded to the Court by each party by 4 pm on 4 May 2012.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2012

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