Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell; [2013] NSWCA 219
• Hearing dates: 4 July 2013
• Decision date: 17 July 2013
• Before: McColl JA at [1]; Basten JA at [2]; Sackville AJA at [58]

Decision

In Nominal Defendant v Green (CA 2012/245362):

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs, to be assessed on the ordinary basis up to and including 3 September 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Golding (CA 2012/245657):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 24 August 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Campbell (CA 2012/245658):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 5 October 2012 and thereafter on an indemnity basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: MOTOR ACCIDENTS COMPENSATION - unregistered vehicle, claim against nominal defendant - contributory negligence - whether trial judge correctly assessed degree of contributory negligence of each respondent plaintiff - plaintiffs injured while passengers - driver of vehicle unlicensed, inexperienced and intoxicated - plaintiffs knew or ought to have known driver's capacity to drive impaired by alcohol consumption - plaintiffs travelling without seatbelts - trial judge assessed contributory negligence at 35% and 40% - whether assessment within range - Civil Liability Act 2002 (NSW), s 5R; TORTS - motor accidents - contributory negligence - trial judge assessed contributory negligence at 35-40% - plaintiffs intoxicated passengers in vehicle driven by person plaintiffs knew to be intoxicated - whether contributory negligence should be assessed at 80% - whether comparison with other cases appropriate - need for restraint in interfering with trial judge's finding of contributory negligence - need for consistency in approach
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5R, 49, 54; Div 2, Pt 1A; Div 8; Motor Accidents Compensation Act 1999 (NSW), ss 33, 138; Supreme Court Act 1970 (NSW), ss 75A, 101; Uniform Civil Procedure Rules 2005 (NSW), Pt 42
• Cases Cited: British Fame (Owners) v Macgregor (Owners) [1943] AC 197; Dennis v NRMA [1997] NSWSC 570; Dunnet v Brennan [2000] NSWCA 211; 31 MVR 362; Jones v Dunkel [1959] HCA 8; 101 CLR 298; Mackenzie v Nominal Defendant [2005] NSWCA 180; 43 MVR 315; Miller v Miller [2011] HCA 9; 242 CLR 446; Mobbs v Kain [2009] NSWCA 301; 54 MVR 179; Mousa v Marsh [2001] NSWCA 317; Nominal Defendant v Lane [2004] NSWCA 405; Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; Tarabay v Leite [2008] NSWCA 259; Williams v Government Insurance Office (NSW) (1995) 20 MVR 148; Zanner v Zanner [2010] NSWCA 343; 79 NSWLR 702
• Category: Principal judgment
• Parties: 2012/245362: Nominal Defendant (Appellant); Mitchell Green (Respondent); 2012/245657: Nominal Defendant (Applicant); James Golding (Respondent); 2012/245658: Nominal Defendant (Applicant); Twylah Rose Campbell (Respondent)
• Representation: Counsel: P W Taylor SC (Appellant/Applicant); J E Sexton SC/M Holz (Respondents Green and Golding); A J Stone (Respondent Campbell); Solicitors: Moray & Agnew (Appellant/Applicant); Bale Boshev Lawyers (Respondents Green and Golding); Stacks the Law Firm (Respondent Campbell)
• File Number(s): 2012/245362; 2012/245657; 2012/245658

Decision under appeal

• Jurisdiction: 9101
• Citation: [2012] NSWDC 37
• Date of Decision: 2012-04-18 00:00:00
• Before: Sidis DCJ
• File Number(s): 2010/289357; 2010/1545352; 2010/292819

Judgment

1 McCOLL JA: I agree with Basten JA.

2 BASTEN JA: Each of the three respondents was injured when the motor vehicle in which they were travelling left the road and collided with a power pole. The accident occurred shortly after 1am on 17 October 2008, on the road from Tingha to Inverell in northern New South Wales. The subject matter of each appeal is the assessment made by Judge Sidis in the District Court as to the degree of contributory negligence of each of the respondents, who were plaintiffs in the proceedings at trial.

3 The trial judge held that damages payable to James Golding and Mitchell Green should be reduced, in each case, by 40% and, with respect to Twylah Campbell, by 35%. The primary factors upon which the level of contributory negligence was assessed were the knowledge or constructive knowledge of each that the driver of the vehicle was so affected by alcohol as to impair his ability to drive the motor vehicle and that none of them was wearing a seat belt.

4 The proceedings in this Court were commenced by the Nominal Defendant. The Nominal Defendant was the defendant in the proceedings below, the vehicle not being registered or insured: Motor Accidents Compensation Act 1999 (NSW), s 33. The proceedings in this Court with respect to Mr Green were brought as an appeal, final orders having been made in respect of his claim. The proceedings involving Mr Golding and Ms Campbell involved applications for leave to appeal with respect to the findings made by the trial judge, which remained interlocutory orders, apparently made with respect to separate questions: Supreme Court Act 1970 (NSW), s 101(2)(e). These matters were set down for concurrent hearing with the appeal. There was no objection to a grant of leave to appeal in these cases. At the completion of the hearing, the Court made orders dismissing the appeals and reserved its reasons. Submissions were heard as to appropriate costs orders. Each of the respondents sought indemnity costs on the basis of offers of compromise made during the course of the proceedings in this Court, which were not accepted. There was no opposition to orders for indemnity costs being made on that basis. It is now necessary to provide reasons for the dismissal of the appeals.

Factual background

5 As explained by the trial judge, many of the facts were not in dispute. At the time of the accident, there were eight persons in the vehicle, a Toyota station wagon, of whom two (Messrs Golding and Green) were in the rear luggage compartment. All the occupants had spent the evening at the Tingha Royal Hotel where a pool competition had taken place. Some participated in the competition; all drank alcohol: at [4]. The three respondents, together with the driver, Samuel Campbell, travelled from Inverell to Tingha for the purpose of going to the hotel for the pool competition. The four other occupants of the car (not involved in the present proceedings) met them at the hotel and travelled back to Inverell in the car.

6 The driver on the way to Tingha, Andrew Blacklock (referred to by the trial judge as David Blacklock), was not present in the car on the return trip. The owner of the car was identified by Ms Campbell in her police interview as her father. Samuel Campbell, who drove on the return trip and thus at the time of the accident, was her twin brother.

7 The Tingha pub closed at about midnight. Samuel Campbell and Mitchell Green went to get the car. Guy Grills gave an account to police (largely confirmed in his evidence) as to what happened when Samuel Campbell came back with the car:

"Sam was talking to Twylar [sic] about it and he just said, 'Look Twylar, I'll drive. I'll take it slow.' That seemed to settle it and then Sammo drove."

8 Samuel Campbell gave evidence that he had got the keys from his sister in order to go and collect the car: Tcpt, 20/03/12, p 19. Guy Grills gave the following evidence (Tcpt, p 136):

"Q. Before you got in the car, do you remember there being any conversation between anybody in your group?

A. Yeah, we was debating who was going to drive.

Q. Who said what?

A. Well, it was more between [Twylah] and Sammo.

Q. What did you hear [Twylah] say to Sammo?

A. Just, 'It's better for me to drive because I haven't had as much to drink.' Sammo was like, 'No, I drive.' Then I offered to drive but Sammo just said, 'Look, I'll drive to town,' and that was it."

9 After the group got in the car outside the Tingha pub, they went first to a house at Hospital Flat Road on the outskirts of Tingha. According to Mr Grills, the conversation which he recounted occurred at the latter location; Twylah Campbell thought it occurred outside the pub. Nothing turns on the place: the significance of the conversation, accepted by Twylah Campbell in her evidence, was revealed in the following cross-examination (Tcpt, p 292):

"Q. You wanted to drive the car and you didn't want him to drive the car. Isn't that right?

A. Yes.

Q. You thought it was better if you drove, didn't you?

A. Yes.

...

Q. You wanted to drive instead of Sammo. You already told us that right? The reason that you wanted to drive instead of Sammo is because you were worried that he'd had so much to drink that it might be dangerous for him to drive the car that night. Isn't that right?

A. Yes."

10 Neither Mitchell Green nor James Golding gave evidence, but in respect of Ms Campbell, the inference sought to be drawn by the appellant was that she had actual knowledge that her brother was sufficiently intoxicated to make it dangerous for him to drive. It not being suggested that she was significantly intoxicated, the appellant said that her judgment in that regard should have been accepted, which increased her culpability in agreeing to travel in the car with a driver she believed to be intoxicated to a state in which his capacity to drive might be impaired.

11 The trip to Inverell involved a drive of some 25 kilometres. Part of it was on a dirt road. At one stage, the car hit a kangaroo. Both Twylah Campbell and her brother got out of the car to see if there had been damage to the front of the vehicle (one headlight was broken) and to the kangaroo, which was dead. Mr Campbell had the presence of mind to pick up the kangaroo and throw it on the roof of the car, where it remained until the accident.

12 The position of the passengers in the car on the trip to Inverell was as follows: Chris Naylor was in the seat next to the driver, wearing a seat belt. Tara Jerrard was in the rear seat behind the driver and was also wearing a seat belt. Twylah Campbell was in the rear seat on the passenger side and was found by the trial judge not to have been wearing a seat belt. Guy Grills was seated in the middle of the back seat with his girlfriend, Laura Kayleeta Blacklock, on his lap with the lap belt around both of them. Mitchell Green was in the luggage compartment on the passenger side of the car and James Golding was in the luggage compartment, lying down, on the driver's side.

13 The accident occurred on the outskirts of Inverell, where the road took a slight right hand curve. The speed limit was 80kph. In coming out of the curve, Mr Campbell lost control of the car, which slid off the road onto the gravel, and thence to the wet grassy verge along which it slid for a distance of approximately 80 metres before the left hand rear side of the car hit a power pole.

14 Mr Green and Mr Golding were both ejected through the rear hatch; Twylah Campbell was ejected through the left hand rear door, as were Kayleeta Blacklock and Guy Grills. Ms Blacklock and Mr Grills suffered only minor injuries. Ms Campbell suffered a fracture of her left femur or thigh, multiple fractures of her pelvis, a fracture of the sacroiliac joint and injuries to her spine. Mr Golding suffered a severe closed head injury, a crush injury to his C5 vertebra, multiple fractures to his left ribs and injury to his pleural cavity and shock. Mr Green also suffered serious injuries to his lumbar spine, ribs, a bilateral grade 4 renal injury, injuries to his pleural cavity and liver and a head injury. The trial judge accepted that the severity of his injuries made it probable that he was sitting in the area where the rear left side of the car struck the pole, with the result that his injuries were suffered whilst he was in the cargo compartment: at [112] and [114].

15 There was evidence from two witnesses as to the speed of the car at the time of the accident. One estimate was 100kph, the other 150kph. Neither witness had any particular experience or expertise in judging speed. The trial judge was satisfied that the driver was exceeding the speed limit, but made no finding as to the actual speed at the time of the accident.

Issues on appeal

16 In order to deal with the issues raised on the appeal, it is necessary to have regard to the issues addressed at trial. According to the trial judge, the Court had been "asked to deal only with the liability aspects" of the three claims. These were identified as duty of care, breach and contributory negligence: at [3]. The first issue to be addressed, relating to duty of care, was whether it would be incongruous - using the term adopted in Miller v Miller [2011] HCA 9; 242 CLR 446 at [16] - to allow recovery by a plaintiff injured in the course of an unlawful enterprise in which he or she was complicit. The trial judge rejected the argument that there was no duty of care owed by the driver to his passengers, a conclusion from which there is no appeal. However, it is convenient to note the summary by the trial judge of the basis of submission in this regard at [13]:

"The 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."

17 The significance of the submission as to absence of duty is that precisely the same matters were relied upon in order to establish a level of contributory negligence by the respondents, which was said by the appellant to be 80%. (In asserting absence of duty, no reliance was placed, nor could it be placed, on s 54 of the Civil Liability Act 2002 (NSW), which precludes recovery of damages where the injury to a plaintiff is materially contributed to by conduct which constituted a "serious offence", being one punishable by imprisonment for six months or more.) In addressing the question of duty, the trial judge considered evidence as to the blood alcohol level of Samuel Campbell, the extent to which, at various stages, he appeared to be intoxicated and the extent to which, during the journey, he demonstrated any impaired capacity to drive. These were obviously matters which were relevant in respect of contributory negligence. They were also relevant to a finding of breach of the duty owed to the respondents (which was duly made) based on the fact that he was driving at a speed in excess of the speed limit while his capacity to drive was impaired by his consumption of alcohol: at [48].

18 Having found in favour of the respondents on these issues, the trial judge turned to the question of contributory negligence, addressing first the circumstances of Ms Campbell and then, together, those of Mr Golding and Mr Green. It is convenient to deal with each in turn.

(a) Twylah Campbell

19 The trial judge identified the following bases relied upon by the Nominal Defendant as elements of contributory negligence:

(1) that Ms Campbell was aware that -

(a) Samuel Campbell was unlicensed and "was therefore an inexperienced driver";

(b) the car was not registered, and

(c) Mr Campbell's ability to drive the car was impaired as a consequence of his consumption of alcohol;

(2) that Ms Campbell did not -

(a) warn her brother against driving after consuming alcohol;

(b) ask him to slow down, or

(c) ask to be allowed to exit the vehicle during the course of the journey; and

(3) that she failed to wear a seatbelt.

20 The trial judge accepted that Ms Campbell knew that her brother was unlicensed and that the car was not registered, but disregarded those factors on the basis that they did not contribute to the harm which she suffered: at [75]. As an unlicensed 19 year old, with a degree of experience in driving since the age of 10, being factors known to his sister, the trial judge was nevertheless satisfied that inexperience did not materially contribute to the harm suffered by Ms Campbell. These findings were unchallenged.

21 The trial judge found that Ms Campbell "knew or ought to have known" that her brother's capacity to drive was impaired by his consumption of alcohol and found that she was ejected from the car because she was not wearing a seatbelt: at [75].

22 The grounds of appeal addressed each of these latter findings. First, it was submitted that the use of the statutory formula in s 138(2)(b)(ii) of the Motor Accidents Compensation Act 1999 (NSW), that the injured person "was aware, or ought to be have been aware" of the driver's impaired ability to drive diminished her culpability, avoided a finding based squarely on actual knowledge. Secondly, in respect of this matter, it was suggested that Ms Campbell's state of knowledge made her culpable in failing to leave the vehicle at the first opportunity, namely when the party visited the house at Hospital Flat Road on the outskirts of Tingha.

23 With respect to the failure to wear a seatbelt, the gravamen of the challenge was that, although the trial judge was correctly satisfied that she was not wearing a seatbelt and also accepted that this resulted in her being ejected from the car, the conclusion that her injuries would have been "substantially reduced" had she worn a seatbelt failed to reflect the extent of the contribution to her injuries. According to the appellant, the proper conclusion was that she would not have suffered any material injury had she been a restrained passenger in the vehicle, a probability said to be demonstrated by the fact that both Mr Naylor and Ms Jerrard, who wore seatbelts, were unscathed.

24 The trial judge rejected the proposition that had Ms Campbell been wearing a seatbelt, she would not have been significantly injured, holding that the comparison with Mr Naylor and Ms Jerrard was inappropriate. Neither of them was seated near the point of impact, whereas Ms Campbell was seated just in front of the point of impact. Thus, although she did not suffer injury as a result of being forced against the other passengers, but rather by being thrown out of the vehicle, the trial judge concluded that she would in any event have suffered significant injury as a result of being seated close to the point of impact with the power pole.

(b) Messrs Golding and Green

25 The trial judge noted the difficulty in making specific findings in respect of the culpability of either Mr Golding or Mr Green, given that neither gave evidence. She referred to an explanation given by senior counsel appearing for them that "the nature of their injuries diminished their capacity to deal with the process of giving evidence": at [77]. She did not refer to any evidence which supported that explanation and may have treated it as inadequate because she immediately referred to the principle established in Jones v Dunkel [1959] HCA 8; 101 CLR 298.

26 With respect to the consumption of alcohol and consequent impairment of Mr Campbell's ability to drive, the trial judge made the same finding as with respect to Twylah Campbell, namely that each of the young men "knew or ought to have known that Mr Campbell's capacity to drive was impaired by his consumption of alcohol": at [83]. She also noted that it had not been suggested by any witness that either of them "questioned Mr Campbell to check the amount of alcohol he consumed or whether he was capable of driving them safely back to Inverell": at [81]. Although this statement did not extend to the inference that they had not in fact raised such issues, it should be inferred that her Honour was satisfied that they had not. Similarly, it might be inferred, although again it was not stated, from the finding that they spent the evening "in the same environment as Mr Campbell where alcohol was consumed over an extended period" that they were actually aware of the amount of alcohol he had consumed. The trial judge also accepted that both Mr Green and Mr Golding should have anticipated that none of the group would be capable of driving safely, by finding that they "failed to address the question of how they were to return safely to Inverell by appointing a designated driver or arranging overnight accommodation [in Tingha]": at [80].

27 So far as their mode of transport was concerned, it was not in doubt that they did not wear seatbelts, as it was common ground that they travelled in the luggage compartment. Their culpability appears to have been treated as somewhat greater because they did not occupy passenger seats within the car, a point made at [83].

28 When dealing with the proper assessment of contributory negligence, the trial judge took account of the relationship of their failure to take care for their own safety to the harm suffered. In this context, she noted the nature of the injuries suffered by each. Although the trial judge accepted that Mr Green was near the point of impact with the pole, no differential allocation of responsibility was made between the two men, presumably because both were culpable in travelling in the luggage compartment.

29 The trial judge assessed the contributory negligence of Ms Campbell at 35% and that of the young men in the luggage compartment at 40% each.

Determination of appeals

(a) applicable principles

30 The 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.

31 What 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.

32 On 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.

33 The 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.

34 The 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."

35 The 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."

36 Even 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."

37 It 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.

38 Apart 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.

39 In 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.)

40 It 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)].

41 The 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.

42 An 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.

43 In 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."

44 The 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."

45 The Court found error in the process of assessment and concluded that a just and equitable reduction was 80%: at [112].

46 The 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%.

47 There 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.

48 Secondly, 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.

49 Thirdly, 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.

50 The 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.

51 The 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].

52 As 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.

53 If 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.

54 However, 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.

55 It 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.

Costs

56 Each respondent made an offer of compromise in accordance with the Uniform Civil Procedure Rules 2005 (NSW). Each offer was refused. The appellant did not submit that the ordinary consequence provided in Part 42 of the rules should not apply. Accordingly the appellant should be made in each matter to pay the costs of the respondent, to be assessed on the ordinary basis up to the date of the offer and thereafter on an indemnity basis.

Orders

57 It is necessary to correct the orders which were entered on 4 July 2013 and to make further orders as to costs. The orders in each matter are as follows:

In Nominal Defendant v Green (CA 2012/245362):

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent's costs, to be assessed on the ordinary basis up to and including 3 September 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Golding (CA 2012/245657):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 24 August 2012 and thereafter on an indemnity basis.

In Nominal Defendant v Campbell (CA 2012/245658):

(1) Grant the applicant leave to appeal.

(2) Direct that the applicant file within seven days the draft notice of appeal contained in the combined red appeal book.

(3) Dismiss the appeal.

(4) Order the applicant/appellant to pay the respondent's costs in this Court, to be assessed on the ordinary basis up to and including 5 October 2012 and thereafter on an indemnity basis.

58 SACKVILLE AJA: I agree with Basten JA.

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Amendments

17 July 2013 - Name of counsel appearing
Amended paragraphs: Coversheet

Decision last updated: 17 July 2013