Stafford v Carrigy-Ryan & Anor  ACT 27
In a recent decision of the ACT Court of Appeal, the extent to which damages should be reduced due to contributory negligence was considered. The Civil Law (Wrongs) Act 2002 (ACT) ss. 95 and 96 are similar to ss.47 and 48 of the Civil Liability Act 2003 (Qld).
The appellant was a passenger in a vehicle driven by the first respondent when it was involved in an accident on 25 October 2008. The appellant and the first respondent had consumed alcohol together from about 5:30pm on 24 October until approximately 1am on 25 October, about 1.5 hours before the accident. The first respondent returned a BAC of 0.155% two hours after the incident.
The primary judge found that both the first respondent and the appellant were intoxicated and the appellant knew or ought to have known that the first respondent was intoxicated. Further, the first respondent owed the appellant a duty of care and had breached it. Her Honour was satisfied that the appellant’s damages should be reduced due to contributory negligence assessed at 35%.
With respect to contributory negligence, the grounds of appeal were:-
- The trial judge erred in holding that the starting point for her consideration of contributory negligence was that the appellant and the first respondent were equally responsible for the appellant’s loss and damage;
- The trial judge erred in finding that the appellant had not withdrawn from the enterprise in which the parties were engaged at the time of the accident;
- The trial judge erred in finding that the appellant’s damages should be reduced by 35% for contributory negligence.
There were a number of other grounds related to the quantum of the claim.
The Court of Appeal considered ss.95 and 96 of the Civil Law (Wrongs) Act 2002 regarding the presumption of contributory negligence where the injured person was intoxicated and the presumption of contributory negligence where the injured person was relying on the intoxicated person.
It was noted that the test of contributory negligence was an objective one: Joslyn v Berryman (2003) 214 CLR 522. The test to be applied was set out by McHugh J in that case at :
Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition—if there could be such a person— would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person—a sober person—would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.”
In that case, both the passenger and the driver were intoxicated, with the trial judge attributing 25% contributory negligence to the passenger. The NSW Court of Appeal reduced that to zero on the basis that the passenger, by way of his intoxication, was unaware of the driver’s intoxication. The High Court remitted the matter to the Court of Appeal to assess contributory negligence on an objective basis. The Court of Appeal then assessed it at 60%.
In this case, the Court of Appeal found that it was inevitable that a finding of contributory negligence would be made and was not satisfied that the assessment of 35% was so high as to demonstrate an error.
It was noted that the appellant, as the person lawfully in possession of the vehicle, had the authority to refuse permission to the first respondent to drive it. The Court found there was ample basis for concluding that the appellant’s damages should be reduced to mark his own responsibility.
The appellant argued that by repeatedly asking the first respondent to slow down, he had “withdrawn his consent to being driven dangerously”. This was rejected by both the Trial Judge and the Court of Appeal. The Appeal Court found that the course of conduct in which the parties were engaged was that of the appellant being a passenger in a vehicle driven by the first respondent whilst intoxicated, rather than driving dangerously. There was nothing in the evidence to suggest the appellant ever withdrew from that enterprise. Further, there was no evidence that the appellant asked the first respondent to stop the vehicle so he could disembark.
Accordingly, the Court of Appeal determined that each of the grounds of appeal failed.