(a) applicable principles
30The Court addressed the question of contributory negligence in accordance with s 138 of the Motor Accidents Compensation Act which 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) ... 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 ... and the injured person ... was aware, or ought to have been aware, of the impairment,
unless, in the circumstances of the case, the injured person ... could not reasonably be expected to have declined to become a passenger in or on the motor vehicle,
(c) where the injured person (not being a minor) ... was, at the time of the motor accident, not wearing a seat belt when required by law to do so,
...
(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.
31What appears not to have been appreciated by the parties in presenting their respective cases at trial was that the assessment of contributory negligence was governed by Part 1A, Div 8 of the Civil Liability Act: see ss 3B(1)(e) and (2)(a). Section 5R, which is found in Div 8 provides:
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.
32On one view, an effect of s 5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm, principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in ss 5B and 5C. That in turn would be consistent with the fact that Div 2 of Pt 1A applies to motor accidents. Significantly, s 3B(2) of the Civil Liability Act provides that s 49 also applies to motor accidents. That section states:
49 Effect of intoxication on duty and standard of care
(1) The following principles apply in connection with the effect that a person's intoxication has on the duty and standard of care that the person is owed:
(a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person's capacity to exercise reasonable care and skill is impaired as a result of being intoxicated,
(b) a person is not owed a duty of care merely because the person is intoxicated,
(c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.
(2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision.
33The way in which this provision interacts with s 138 of the Motor Accidents Compensation Act is by no means self-evident. Section 49(1) is, in terms, concerned with the duty and standard of care owed to the person who suffers harm; questions of contributory negligence are concerned with the standard of care imposed on that person in relation to his or her own responsibility for the harm suffered. On one view, the effect may be that the standard expected of the victim is not affected by the victim's intoxication. However, no submissions were addressed to the operation of this provision and, no reference having been made to it in the judgment below, this case is not an appropriate vehicle to determine how it might apply. In the circumstances, it is not useful to address further the appellant's complaint that the trial judge "made no specific finding about Ms Campbell's own sobriety": written submissions, par 2.
34The trial judge correctly identified the relevant principles as those derived from the judgment of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 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 ... and of the relative importance of the acts of the parties in causing the damage.... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
35The assessment turns on findings of fact which may not be, and in the circumstances of this case were not, finely honed. Thus, it is easy to infer from the conversation between brother and sister as to who should drive, taken with Ms Campbell's acceptance that she was concerned as to whether her brother's capacity to drive might have been impaired by his consumption of alcohol, that she was aware of at least the possibility, if not the likelihood, that some impairment had occurred. However, the extent of her culpability depended greatly on the extent of the impairment of which she was or ought to have been aware. Beyond the inferences which could be drawn from the conversation, there was little in the evidence to provide any basis for an assumption of significant impairment. The trial judge carefully noted the evidence of all the witnesses in respect of Samuel Campbell's apparent degree of intoxication and his ability to drive. She tested that against the evidence of Professor Starmer as to the likely effects of a blood alcohol content conservatively estimated at 0.09g/100ml. (In oral submissions, senior counsel for the appellant appeared to favour a higher reading as more realistic, but there was no basis for this Court to interfere with the trial judge's finding.) The trial judge said:
"34 Professor 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.
...
41 Of 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 [rhythmical oscillation of the eyes], 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."
36Even the evidence of loquacity was guarded. As the trial judge noted at [31(3)(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."
37It might have been open to the trial judge to discount the air of normality which flowed from the evidence of the participants, but there was certainly no obligation on her to do so. There was no necessary inconsistency between their evidence and the blood alcohol reading. Although parts of the evidence of the police at the scene of the accident might have led to a finding that Samuel Campbell was more obviously affected with alcohol than the participants acknowledged, there were considerable discrepancies between the descriptions given by the two officers. Further, as the trial judge noted, there was evidence that Mr Campbell was extremely distressed and crying, while walking about with his head in his hands, when the police arrived. As the trial judge noted, the appearance of Mr Campbell when seen by police was at best equivocal and did not readily demonstrate the degree of his intoxication.
38Apart from the question of speed, it is by no means insignificant that, as the trial judge noted, "none of the them reported behaviour on the part of Mr Campbell in the car itself that indicated that his capacity to drive was impaired": at [41]. His behaviour immediately after hitting the kangaroo did not demonstrate significant impairment.
39In relation to the apportionment, the appellant complained that three specific findings made by the trial judge appeared not to have influenced the percentage attributed to contributory negligence, namely:
(a) a finding that Ms Campbell "knew or ought to have known" that Samuel Campbell's driving ability was alcohol impaired;
(b) Ms Campbell's failure to arrange a designated driver or alternative accommodation, and
(c) Ms Campbell's failure to leave the vehicle when it stopped and at least some of the occupants alighted, at the Hospital Flat Road house in Tingha. (Written submissions, par 15.)
40It seems unlikely that the second factor, though referred to in the judgment at [55], constituted an independent factor of significance in the judge's reasoning. There was no evidence to suggest that she, or indeed the others, were in the habit of making advance arrangements for accommodation with relatives after a night at the pub. Nor was it suggested to Ms Campbell that her continuation of the trip after the stop at Hospital Flat Road was influenced by that factor. The real point underlying these three matters was that she should not have been in the car at the time of the accident, had she been taking proper care for herself. The gravamen of the finding was that she knew or ought to have known of the impairment: the significance of that finding depended essentially on the level of impairment which should have been appreciated, which the trial judge assessed by reference to the blood alcohol reading, concluding that it "did not suggest an extreme level of intoxication": at [31(1)].
41The second element of the appellant's challenge is again fact-dependent. The complaint as to the level of culpability, most of which, on the appellant's case was indeed attributable to the failure to wear a seatbelt, depended on the potential causal connection between that failure and the severity of the injuries. As noted, her Honour rejected the proposition that there would not have been significant injuries had Ms Campbell remained in the vehicle, a finding of fact which was entirely reasonable on the evidence and is not readily open to challenge involving, as it does, matters of judgment and degree.
42An additional complaint made by the appellant is that the judge's reasons for the apportionment focused entirely upon Ms Campbell's failure to wear a seatbelt. As a comment on the explanation for the reduction given at [101], that proposition is correct. However, her findings as to contributory negligence, set out at [75], included both Ms Campbell's knowledge or constructive knowledge of her brother's impairment by alcohol and the failure to wear a seatbelt. It is unlikely that, having made that express finding she entirely disregarded it in assessing the proportionate reduction on account of contributory negligence. It is this issue which warranted a grant of leave to appeal: however, the success or failure of the appeal ultimately turned on the adequacy of the 35% reduction in the award of damages.
43In this respect, the appellant submitted that the very substantial apportionment (80%) which it proposed was supported by three authorities, in each of which contributory negligence was assessed at 80%. In the first, Williams v Government Insurance Office (NSW) (1995) 21 MVR 148, the plaintiff and another couple had been drinking for several hours at a club. They left the club in a car owned by the plaintiff. Rather than drive herself, she handed the keys to her friend, with whom she had been drinking, whom she knew to be affected by alcohol and to be a learner driver. Her friend's husband, who was also inebriated, sat beside the driver, whilst the plaintiff lay down on the back seat of the vehicle. The driver lost control and the plaintiff was severely injured. The trial judge assessed contributory negligence at 80%, a figure with which this Court declined to interfere. (Kirby P, in dissent, would have reduced the figure to 40%.) Cole JA (with whom Meagher JA agreed) stated at 163:
"Here, the appellant ought reasonably to have foreseen that to hand the keys of her car to an inexperienced, alcohol affected, unlicensed learner plate driver to be assisted by a person himself too affected by alcohol to drive was to act both unreasonably and without prudence. The appellant ought to have reasonably foreseen that so doing exposed her to risk of gross injury.
The extent of risk of injury commences with driving with an L-plate driver. That risk may be regarded as modest because the learner driver is normally assisted by a competent licensed driver who can give her instruction sufficient to avoid or minimise the likelihood of accident and thus damage. The risk is increased to a very great extent if the person giving such assistance so as to minimise risk is himself so affected by alcohol as not to be able satisfactorily or effectively to perform that task. It is magnified to a much greater extent if the inexperienced driver is affected by alcohol. And is magnified a fourth time if the passenger who is accepting these risks then lies in the rear seat of the vehicle without a seatbelt."
44The second case was Mackenzie v Nominal Defendant [2005] NSWCA 180; 43 MVR 315. This was also a case in which the owner of the vehicle (a motorcycle) travelled as a pillion passenger, having invited a friend who had no licence and was believed by the plaintiff to be "immature and irresponsible", to drive the motorcycle. The plaintiff said that he would not "in his right mind" have permitted him to drive the motorcycle: at [26]. The driver's blood alcohol level was estimated at 0.187% at the time of the accident. The plaintiff's blood alcohol level was estimated at 0.25%. The trial judge fixed the plaintiff's culpability at 100%. In considering whether this Court should interfere, Giles JA (with whom Stein AJA and Gzell J agreed) stated at [101]:
"In reconsidering the reduction of the passenger's damages in Berryman v Joslyn [[2003] HCA 34; 214 CLR 552] a reduction of 60% was found, and in Williams v Government Insurance Office (NSW) a reduction of 80% 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."
45The Court found error in the process of assessment and concluded that a just and equitable reduction was 80%: at [112].
46The third case relied upon was Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702. The plaintiff, the mother of an 11-year-old boy, permitted her son to drive the family car into the carport, whilst she was standing two metres in front of the vehicle. The boy's foot slipped from the brake to the accelerator causing the car to collide with the plaintiff. The trial judge had assessed the mother's contributory negligence at 50%. The appellant submitted that the reduction should have been 100%. This Court intervened, fixing the reduction at 80%.
47There are a number of issues raised by the reliance placed on these cases. First, they are not "authorities" in the sense that they establish some legal principle: rather, each is an example of an assessment of responsibility based on particular facts. On the other hand, the wide variation in results noted by Giles JA may reveal an undesirable disparity in result between cases which are truly comparable. Kirby P in Williams was critical of "pious solecisms about the unique quality of the facts of each case", as a basis for not having regard to similar cases: at p 157.
48Secondly, it is commonly said that an appellate court should be reluctant to interfere with a trial judge's finding as to contributory negligence, on the basis that reasonable minds may differ as to where within a particular range, the appropriate result is to be found: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201, adopted in Podrebersek at 493-494 and applied by this Court in Mousa v Marsh [2001] NSWCA 317 at [12] and in Mobbs v Kain [2009] NSWCA 301; 54 MVR 179 at [112]-[113]. The existence of a principle of restraint is important; its operation, however, may vary depending on the circumstances. British Fame was an Admiralty case determined by a judge with particular expertise in the area; Podrebersek was a jury case. Further, it is important to identify the nature of the challenge by the party seeking appellate intervention: see Tarabay v Leite [2008] NSWCA 259 at [24]-[35] (in my judgment, in which Allsop P and Bell JA agreed). The role of an intermediate appellate court in respect of such matters, like the role of Court of Criminal Appeal in relation to sentencing, is to ensure a degree of consistency in approach on the part of trial judges. Thus, where a finding is outside an appropriate range, this Court, on an appeal governed by s 75A of the Supreme Court Act 1970 (NSW), should usually intervene.
49Thirdly, there is a superficial attraction in the submission made by senior counsel for the respondents Green and Golding that it cannot be just and equitable to attribute 80% of the blame for the accident to the injured passenger, when the primary causative event was the carelessness of the driver. However, the submission is attended by two separate difficulties. First, it elides causation and culpability. Culpability is the measure of departure from an appropriate standard of care and may be viewed separately from the causal link between carelessness and harm. Secondly, the comparison between the culpability of the driver and that of the injured plaintiff is problematic and highly fact-specific. For example, in Zanner v Zanner, the boy's mistake was to allow his foot to slip from the brake to the accelerator, an act of momentary inadvertence. His mother's error was to stand, unnecessarily, in the path of the vehicle whilst being driven by a young and inexperienced driver. In the present case, the respective failures of each plaintiff to avoid harm resulted from their willingness to travel in the car with a driver who was relatively inexperienced and intoxicated, and without seatbelts. The breach by the driver was not of a duty owed to himself, but of a duty of care owed to each of his passengers and, potentially, to other road users. An apportionment which is "just and equitable" requires the weighing of the culpability of each plaintiff as against that of the negligent driver and an assessment of the causative contribution of the lack of care of each. The range within which the resultant apportionment lies may, in a particular case, be quite broad.
50The respondents noted that there were decisions in which similar conduct appeared to have given rise to findings of contributory negligence between 25% and 50%. In Dennis v NRMA [1997] NSWSC 570, James J assessed contributory negligence of 50% with respect to a claim by a plaintiff against his wife in circumstances where he knew she was driving while intoxicated and he, the plaintiff, was not wearing a seatbelt. In Nominal Defendant v Lane [2004] NSWCA 405 the trial judge reduced the plaintiff's damages by 40%, in circumstances where both he and the driver were significantly affected by alcohol (their readings being between 0.144g/100ml and 0.175g/100ml) and he was not wearing a seatbelt (although the vehicle was only fitted with seatbelts inappropriately attached to the doors). This Court (Giles JA, with whom Ipp and Tobias JJA agreed) declined to intervene.
51The third case from this State was Dunnet v Brennan [2000] NSWCA 211; 31 MVR 362. The plaintiff and two friends, all of whom were inebriated, stripped in order to expose their buttocks to people in the following vehicle, not an activity of high social value. They climbed out of the rear window and stood on the rear bumper bar, grasping the rear roof rack. The plaintiff then climbed onto the top of the vehicle, but was thrown off and injured when the vehicle turned a corner. His damages were reduced by 25%. Fitzgerald JA (with whom Priestley and Powell JJA agreed) noted that the reduction "might seem curious" taking into account the respondent's intoxicated state and "reckless folly": at [13]. Noting that other minds might consider a higher figure appropriate, the Court concluded that 25% was within the available range and therefore not a conclusion with which the Court was entitled to interfere: at [15].
52As senior counsel for the respondents Green and Golding noted, neither these authorities nor those relied on by the appellant demonstrated any more than the availability of a wide range in broadly comparable circumstances.
53If these cases were thought to be truly comparable, a range which extended from 25% to 80% is too broad to be acceptable. Even a range from 30% to 60%, which would allow the independent discretion of a trial judge to award half (or twice) what another judge would award, might appear to involve an element of arbitrariness or caprice.
54However, the two groups of cases to which the Court was referred were not broadly comparable with the present case. As counsel for the respondents correctly noted, each of the cases relied upon by the appellant, where a reduction of 80% was upheld, involved a plaintiff who, either as the owner of the vehicle, or, as in Zanner, as the mother of a minor, was in a position, not merely to decide whether he or she should accept a particular risk, but to control the conduct of the intoxicated driver. Further, in each case the plaintiff not merely failed to control the driver, but actively invited the driver to drive. In the cases involving alcohol, the blood alcohol levels of the drivers were far higher than that of Mr Campbell. These comparative aspects of the conduct will readily justify an increase in apportionment for contributory negligence above the present range.
55It is sufficient to say in the present cases, there was no reason demonstrated which took the conduct of the respective parties outside a range of 35%-40%. For these reasons, leave to appeal was granted, but the appeals dismissed.