Roggenkamp v Bennett

The action was tried by Matthews J. without a jury in the Supreme Court of Queensland and he gave judgment for the defendant. This appeal is brought by the appellant against this judgment.

It appears from the reasons for judgment of Matthews J. that at the trial the respondent did not dispute that it was a correct inference from the evidence that the appellant's injuries were caused by the failure of the respondent's son to exercise proper care in the management and control of the car. The respondent relied upon the defences of volenti non fit injuria, contributory negligence and that there was no breach of any duty owed to the appellant. Matthews J. decided that these defences were made out and his judgment is based upon his finding for the respondent on those defences.

As defences to an action for damages for injuries caused by the negligent driving of a motor car, these three defences are discussed in the case of Insurance Commissioner v. Joyce [5] . The instant case is like that case in that there is evidence that the driver's failure to control the motor car was due to intoxication and the appellant was a gratuitous passenger.

The evidence shows that the appellant and the driver of the car had been pilots in the R.A.A.F. in Java: they met for the first time after two years in Brisbane about midday on 20th March 1949. The accident in which the appellant sustained the injuries for which he claims damages in this action was the sequel to the celebration of this reunion by excessive drinking. They had drinks at a hotel and a club and went on a pleasure trip in the respondent's motor car to Southport. During the first half of the journey they stopped at four hotels on the road and had more drinks. The final stop before the accident was made at about 8 p.m. at an hotel at Southport. When they left this hotel to get into the car to resume the trip both of them showed signs of being under the influence of liquor; each had his arm around the other and was unsteady on his feet. When they entered the car it started off at a fast pace; the lights of the car had not been switched on; it ran an erratic course across the road towards the river bank. The car was then driven on the wrong side of the road in the direction of Southport. A crash was heard; the car ran over a culvert and came to a stop in a drain. The driver was found behind the steering wheel and the appellant was in the front seat. Both men smelt of liquor and were unconscious. The appellant was gravely injured.

This evidence clearly proves that the respondent's son was the driver and was in control of the car at the time of the accident and that there was negligence on his part in the driving and control of the car which resulted in the appellant sustaining injury.

The defences set up by the respondent depend upon the evidence of excessive drinking by the driver. It is argued for the appellant that there is no support for the defences in the evidence because the evidence does not prove that the driver was so much under the influence of liquor that he could not drive the car safely, or, if he were, that the appellant was also too drunk to appreciate the danger.

The finding which Matthews J. made was that when the appellant and the driver got into the car for the last time before the accident "they were both considerably affected by liquor and that their state at the time was caused through their having together at the various places mentioned (the hotels on the road) partaken of a considerable amount of intoxicating liquor." His Honour took the evidence of the driver into account in reaching this conclusion. The evidence was that he and the appellant had at least eighteen drinks in the afternoon before they arrived at the hotel which was the last place where they called before the accident. The evidence, as already stated, proves that they left this hotel walking unsteadily and holding on to one another. Counsel for the appellant argued that the learned trial judge should have rejected the driver's evidence that they had drunken to excess because he made an unsworn statement after the accident and before the trial that he was sober at the time of the accident. The case is predominantly one of oral evidence and therefore one of those cases in which "an appellate court can never recapture the initial advantage of the judge who saw and believed": Powell v. Streatham Manor Nursing Home [1] . The independent evidence of the behaviour of the car shortly before the accident corroborates the driver's evidence. We do not think that we would be justified in setting aside the finding of fact made by the trial judge on the issue of drunkenness. On the contrary we think that the finding is consistent with the evidence and a correct finding.

Taking the defence of volenti non fit injuria, the onus was on the respondent to prove this defence. The elements of the defence are conveniently stated in Halsbury's Laws of England, 2nd ed., vol. 23, at pp. 716-718. There it is said that: "In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of danger, for this alone would be insufficient, but also that he fully appreciated it and voluntarily accepted the risk. The question whether the plaintiff's acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from his conduct in the circumstances. The inference may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as, for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not."

Matthews J. made the following findings: "I think the plaintiff was a voluntary participant in the trip: that he participated in causing the driver's intoxication by drinking with him and continuing the trip while he was at intervals drinking the intoxicants. He therefore knew of the driver's intoxication and that he had helped to bring it about"; and "I think the plaintiff voluntarily encountered the risk which was obviously associated with the drunken condition of the driver and that there was no breach of duty by the defendant's driver to him. Also that in view of the fact that the car was apparently driven for some distance - possibly three-quarters of a mile - after leaving the Grand Hotel, (the last hotel at which they called before the accident) without lights, no reasonably prudent man having a regard for his own safety would have allowed himself to be driven by a driver in such a condition that he would drive any distance on a dark night without lights even if the lights had been out of order."

In our opinion these findings are reasonable and proper and well supported by the evidence. The case is one in which the court may readily draw the inference that the appellant knew and appreciated the risk of riding in the car with the driver and consented to undertake the risk.

The appellant and the driver made the journey for pleasure and the appellant was under no necessity of riding in the car or continuing the trip. He was much under the influence of liquor when he got into the car for the last time before the accident, but the evidence does not warrant the inference that he was so drunk that he was not aware that the driver was also very drunk, or that he was not conscious of the risk of riding in the car with his companion at the wheel. Perhaps it is not possible to say whether one was more under the influence of liquor than the other. The appellant also would no doubt have been too drunk to drive safely. It does not follow that he was not conscious of his companion's drunken condition, or that he did not know that it was very risky to continue the trip with him as driver, or that he could not consent to incur the risks which were obviously associated with the continuation of the jaunt. The appellant could not but have been fully aware that the driver had been participating with him in this drinking bout and that in going any further after their last stop he was exposing himself to the clearly perceptible risk that his companion would drive the car so recklessly or carelessly as to cause an accident, or be unable to drive or control it with sufficient care or skill to avoid an accident. Immediately before they got into the car they were unsteady on their feet and one was holding on to the other. It is an inescapable inference that the appellant knew and appreciated the danger of the situation and voluntarily consented to take the risk of the occurrence of an accident such as that which unfortunately happened. In our opinion the defence of volenti non fit injuria was clearly made out. This is a good defence to the action.

It is therefore unnecessary to deal with the other defences. We would add that in our opinion the facts establish that the appellant made default in his duty to take due care for his own safety; having participated with the driver as his companion in this drinking bout which practically destroyed the driver's ability to drive or control the car, he again boarded it with him and resumed the pleasure jaunt with him as driver. It is established that he failed to take due care for his own safety; his negligent conduct in getting into the car and resuming the journey materially contributed to his injuries.

At the end of his reply counsel for the appellant raised for the first time in the case the point that by reason of s. 289 of The Criminal Code Q. the defence of volenti non fit injuria was not an admissible defence to this action. The Court inquired of counsel for the appellant whether he wished to apply to amend the pleadings in order to add a count based on that section. He said that he did not wish to amend. The pleadings in the case do not raise this point and it was never a question in the case. We express no opinion on the question whether a breach of s. 289 could be the foundation of a civil action at the suit of an injured person: if such breach would give rise to a civil remedy and that is the remedy which the appellant now wishes for the first time to pursue, the defence of contributory negligence would defeat his case.

Allowing for the advantage that the learned trial judge possessed in seeing the witnesses give their evidence and observing their demeanour I can find no reason for differing from his findings that the plaintiff voluntarily participated in the trip to Southport and in causing the driver's intoxication by drinking with him before and during the trip, and that the plaintiff was aware of the driver's intoxication. There was the evidence of eye-witnesses as to the behaviour of the driver and the plaintiff as they proceeded with their arms around one another and with somewhat unsteady gait to enter the car at the Grand Hotel Southport after 8 p.m. and as to the swift and erratic movements of the car without lights before it was driven from the road at Loder's Creek with resulting injuries to the plaintiff. There were also the admissions of the driver and the plaintiff that they were drinking together at several hotels before and during the trip, and the further admission of the driver that he had consumed eighteen glasses of beer. In this respect the case differs from that of Insurance Commissioner v. Joyce [1] in which the learned trial judge Philp J. drew the conclusion that the driver of the car was drunk at the time of the accident from the fact that he was very drunk about two hours later - a finding that was sustained by this Court after it had been set aside by the Full Court of Queensland, although Dixon J. thought there was no evidence that the plaintiff Joyce had sufficient knowledge or appreciation of the fact that the driver had so far impaired his competence to drive the car that it was dangerous to proceed as his passenger. Dixon J. thought it was all speculation or guesswork [1] .

1. (1948) 77 C.L.R. 39. 2. (1948) 77 C.L.R., at p. 60.

Philp J. held that the plaintiff Joyce failed for lack of proof of a breach of any duty owed to him by the driver, the defendant Kettle.

Then as the driver of this car was drunk and the plaintiff was aware of the fact as they proceeded to enter the car at the Grand Hotel I think the learned trial judge Matthews J. rightly held that in view of Joyce's Case [2] he should find as he did for the defendant Bennett on the ground that there was no breach of duty by the driver - or the defendant - to the plaintiff. Latham C.J. held in Joyce's Case [3] that there was no breach of duty to the plaintiff Joyce. Rich J. may, I think, be taken to have been of the same opinion as he did not say or suggest that he found any fault with the finding or reasoning of Philp J. Dixon J. [4] also expressed the view that if a passenger knowingly accepts the voluntary services of a driver affected by drink he cannot complain of improper driving caused by his condition, because it involves no breach of duty.

1. (1945) 77 C.L.R. 39. 2. (1948) 77 C.L.R., at p. 46. 3. (1948) 77 C.L.R., at p. 57.

It is unnecessary to deal with the defences of volenti non fit injuria or of contributory negligence.