John Tsakalos v Nrma Insurance Limited [1988] ACTSC 49 (18 August 1988)

SUPREME COURT OF THE ACT

JOHN TSAKALOS v. N.R.M.A. INSURANCE LIMITED
S.C. No. 577 of 1986
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Damages - personal injuries - plaintiff passenger in vehicle - action brought against third party insurer of vehicle driven by deceased - both plaintiff and deceased affected by alcohol - no dispute regarding negligence of plaintiff or quantum of damages - questions of voluntary assumption of risk and contributory negligence - whether plaintiff failed to take reasonable care for his own safety by not wearing seatbelt.

Geoffrey Ian Tryde v. Gavan Robert Holmes (unreported, Gallop J., Supreme Court of the ACT, 16 June 1988)

HEARING

CANBERRA
18:8:1988

ORDER

There be judgement for the plaintiff in the sum of $85,933.39

The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries arising out of the use of a motor vehicle.

2. On the evening of Friday, 23 November 1984 in the suburb of Rivett a number of young men met to celebrate the success of their efforts earlier in the day to have registered an MG sports car which belonged to one of them, Michael Gugel. Meanwhile, also in Rivett in a house nearby, the plaintiff was meeting with friends preparatory to going on to drink at a hotel at Mawson. As events transpired, these two groups of people were to meet by chance encounter in the carpark at the rear of Matildas Tavern, Weston Creek, shortly before midnight. Soon afterwards, the body of Michael Gugel was found alongside his sports car which was impacted against a tree along Cotter Road, Duffy. The plaintiff was found, still in the passenger seat of the vehicle, severely injured.

3. The plaintiff brings his action against the authorised third party insurer of the motor vehicle being driven by the deceased. The parties have agreed on the quantum of the plaintiff's damages should he be entirely successful in his claim. There is no dispute that the plaintiff's injuries were sustained as a result of the negligence of the deceased. The issues to be determined are whether the plaintiff's claim should be defeated because of his voluntary assumption of the risk which gave rise to his injuries, and if it is not to be so defeated, whether his damages should be reduced for contributory negligence. a small

4. The facts are in compass, although they are not particularly easy to determine because of the failure of memory of the witnesses caused either by intoxication, or injury or both. The plaintiff has very little memory of the crucial matters. Although the statement of claim alleges injury to the head amongst the plaintiff's other injuries, there is no medical evidence which would support the proposition that the plaintiff's memory is affected by the results of his injuries, and no such contention was made on behalf of the plaintiff. The plaintiff, who was born on 31 July 1961, said that on the evening in question he met friends at the home of his then girlfriend, Vicki Tremble, at Rivett at about 5.45 p.m. After eating something the four of them went to the Ambassador Hotel at Mawson, Vicki Tremble driving them in her vehicle. They stayed until closing time, which I take to have been about 11 p.m. During that time the plaintiff said he had about five or six middies of beer. They went back to Rivett. David Tremble went inside his house and came out with six cans of beer. The four young people then went to the Rivett Oval where each of them consumed one of the cans of beer. It was then that they proceeded to Matildas Tavern. Either along the way or immediately upon arrival the plaintiff and David Tremble each began drinking the last of the beer.

5. There is conflicting evidence as to where Vicki Tremble parked the vehicle. According to the plaintiff, the vehicle was parked more or less immediately to a wall at the rear of or on the northern side of Matildas tavern. David Tremble was not aware exactly where the vehicle was parked, except that it was at the back of Matildas Tavern. Vicki Tremble was quite firm in her evidence that the vehicle was parked at the carpark outside the supermarket some one hundred to two hundred metres from the tavern. There is no evidence that Vicki Tremble had more than two glasses of beer during the course of the evening, and I have no reason to reject her evidence. It does not conflict in any essential aspect with the evidence given by the defendant's witnesses. Vicki Tremble said that as she walked along the pathway on the eastern side of Matildas Tavern, which led to the front of the tavern on the southern side, she heard the sound of a vehicle behind her and became aware that it was a white MG proceeding towards the northern wall of the tavern. Photographs indicate that there is a small parking area sufficient for two or three vehicles next to that wall. Vicki Tremble said that she and the other young woman went into the tavern with the two young men who were asked to leave with the drinks they had brought with them. Neither the plaintiff nor David Tremble had any recollection of going into the tavern. Again I accept the evidence of Vicki Tremble that they did so. The plaintiff and David Tremble then left the tavern and began walking along the footpath on the eastern side of the tavern in the direction of the carpark.

6. I now go back to events earlier in the evening concerning those in t he white MG. The celebration seems to have commenced in the late afternoon at the home of John Vivian at Rivett when he, Andrew Hyde Swindells and the deceased began drinking a bottle of whisky procured by Mr.Swindells. Apparently the deceased did not usually drink whisky, but it was acceptable to him when there was nothing else to drink. The three men were joined by a fourth, Mr. Ian Bowers. Within half an hour of the arrival of Mr.Bowers, the bottle of whisky was consumed. Another bottle of whisky (possibly a half bottle) was purchased as well as a bottle (or possibly two bottles or possibly two half bottles) of rum. By about 7 p.m. most of the liquor had been consumed. Three of the young men took their leave of Mr. Vivian and proceeded in the vehicle of the deceased to his home at Fisher. There, or somewhere along the way, they obtained another bottle of whisky. There was still a quantity of rum left. They continued or recommenced drinking. Then the deceased drove them to the Canberra Southern Cross Club, where they made an unsuccessful attempt to gain entry. By then it was about 1o'clock or later. They proceeded then to Mount Stromlo and consumed most of the remaining liquor whilst listening to a cassette player and dancing in the dark. That took about an hour or so. Then they proceeded to Matildas Tavern.

7. Both Mr. Bowers and Mr. Swindells gave evidence and a statement give n to the police by Mr. Swindells was admitted into evidence. Mr. Bowers said in his evidence that the deceased had a high tolerance for alcohol and he noticed nothing unusual about the manner of driving on the part of the deceased at any stage during the course of the evening and there was nothing about the deceased's behaviour or manner of driving which gave him any cause for concern. However, he also admitted that he himself was "fairly intoxicated" and that all persons concerned were exuberant and "free because of the alcohol". For a person who had drunk so much over the course of the evening and night, Mr. Bowers had a remarkably clear memory as to the events.

8. Mr. Swindells did not have such a clear recollection according to hi s evidence. He stated that the deceased was "only slightly affected". On the other hand, in his statement to the police, Mr. Swindells gave what was again a remarkably clear account of the events of the evening and stated that the deceased was "well under the influence of alcohol".

9. The events occurring after the arrival of the MG at the rear of Matildas Tavern assume a critical importance in the case. However, the evidence relating to those events is unreliable. The plaintiff claimed that he approached the vehicle which was parked close to the wall of the tavern and expressed his admiration for the vehicle. He said that there was no conversation with the driver that he could remember, the two passengers in the vehicle alighted and somebody suggested that the plaintiff and Mr. Tremble be taken "for a spin". The plaintiff claimed that the driver of the vehicle remained in the seat at all times, that he "seemed all right", that "they seemed perfectly normal" and that he could not tell "how drunk they were". When questioned as to the usual symptoms of intoxication such as unsteadiness, slurred speech and so forth, the plaintiff said that he did not recall or did not notice. On some matters of detail the plaintiff's evidence conflicted with what he admitted he had said to the police at a later stage.

10. The evidence of Mr. Tremble was similar to that of the plaintiff. H e claimed that there was a conversation between the plaintiff and one or more of the other men. In his statement to the police, however, he was much less definite. He said that there was some conversation between the plaintiff and himself on the one hand and the three persons who had got out of the vehicle on the other hand. Mr. Tremble said that his view at the time of giving evidence was that the driver stayed in the car during that conversation. He claimed that he did not know any of the three other men, but when Mr.Bowers was called into court he admitted that he could have seen Mr. Bowers on prior occasions when he had been drinking at the nearby Rose and Crown Tavern. He claimed that he was unable to form a view as to whether the others were affected by alcohol and that he himself was only slightly affected. He said that he noticed the plaintiff and the deceased speaking together. On the whole, I do not think that Mr. Tremble stood up well in cross-examination.'

11. Mr. Bowers' evidence as to the meeting after arriving at the carpar k was that after getting out of the vehicle and walking towards the tavern he noticed David Tremble on the footpath and recognizing him said, "G'day Dave, how are you". Mr. Bowers claims that there was a conversation then for about fifteen minutes. Exactly who took part in the conversation and who said what, was not clear. Mr.Bowers claimed that there was talk of the good time they had had earlier in the evening and reference was made to their drinking. Under cross-examination he said that whilst at Mt. Stromlo he had trouble keeping his balance, as the others did. They were prone to fall over in fits of laughing. Once again, Mr. Bowers displayed a remarkably clear memory in the light of what he claims to have drunk.

12. However long it took for whatever conversation occurred to take pla ce, it ended when the plaintiff and David Tremble got into the vehicle. Mr. Tremble sat in some sort of space immediately behind the seats. The plaintiff sat in the passenger seat. The vehicle drove off and that was the last anybody saw of them until after the crash.

13. An autopsy conducted on the body of the deceased some fifteen hours later established that his blood contained 228mgs. of alcohol in 1 mls. of blood. The evidence of Dr Frank Slater further established that immediately before death the deceased was well affected by liquor, and to the extent that he would have been observed not to walk properly, to sway, to slur his words and in general to behave in a manner "more unbalanced", "more spontaneous" and "like a car without the brakes".

14. The law relating to the defence of voluntary assumption risk and contributory negligence particularly as it relates to a claim by a passenger against a drunken driver, has recently and conveniently been restated by Gallop J. and the cases collected in Geoffrey Ian Tryde v. Gavan Robert Holmes (unreported, 16 June 1988, Supreme Court of the ACT). As his Honour observed, the cases establish that for the defence of voluntary assumption of risk to succeed in a drink driving case, the defendant must prove that the plaintiff could see that the driver was or could well be intoxicated to such a degree as to render him an unsafe driver, that he appreciated fully that it was dangerous to travel in the vehicle as a passenger, and that he nevertheless decided voluntarily, that is to say, without compulsion or necessity to take the risk involved in travelling as a passenger."

15. In the present case it is, of course, firmly established that the deceased was well affected by liquor and, in my view, this would have been apparent to anybody who conversed with him or who observed him walking or getting about. However, the evidence in the case is so vague and imprecise that it is not established to my satisfaction that there was in fact a conversation between the plaintiff and the deceased, nor is it established that the deceased was out of the vehicle at all, let alone in circumstances that his condition must have made itself known to the plaintiff. If one thing is clear, it is that the interest and attention of both the plaintiff and David Tremble was focused not upon the driver of the vehicle or its occupants but upon the vehicle itself. I reject the defence of voluntary assumption of risk.

16. Turning to the question of contributory negligence, it is trite to say that it involves simply a failure on the part of the plaintiff to take reasonable care for his own safety in all the circumstances. Quite often in cases similar to the present consideration has to be given to the extent to which the intoxicated condition of the plaintiff may be seen as some sort of justification for failing to inquire into or to take notice of the intoxicated condition of the defendant. That issue does not really arise in the present case because the evidence does not lead me to a conclusion that the plaintiff was more than slightly intoxicated at the most. Although I am wary of his own been established via Vicki Tremble and possibly through the other young lady as well that the plaintiff was well and truly intoxicated if that had in fact been the case. The defendant did not, however, seek to establish that fact through cross-examination of those witnesses.

17. What is established to my satisfaction is that the plaintiff probab ly allowed his interest in the sports car to overcome a proper sense of caution before accepting a lift in the vehicle. There are no doubt situations in which a person may happily accept a lift from a stranger, assuming without inquiry that the stranger is quite sober. However, this was not one of those situations. It was late on a Friday night, outside a tavern, and regardless of the condition of the driver, his companions, by their obvious boisterousness and unsolicited generosity, must have put even the most casual observer on notice that they may have been less than sober. This in turn would have directed the attention of a prospective passenger, exercising reasonable care for his own safety, to the sobriety or otherwise of the driver before accepting the offer of a lift. Either the plaintiff failed to direct his mind along those lines, or having so directed it, decided to embark upon the venture nonetheless. In those circumstances, he was guilty of contributory negligence. The defendant also relied upon an allegation that the plaintiff failed to take reasonable care for his own safety by not wearing a seatbelt. In my view, the fact that the plaintiff failed to wear a seatbelt has not been positively established. The onus is on the defendant. The plaintiff was found in the open vehicle in the passenger seat after the collision. In contrast, the body of the driver was found beside the vehicle. Despite police and coronial inquiries, there is no evidence one way or the other as to whether the plaintiff was wearing a seatbelt. The probability is that the vehicle was equipped with such a device, having passed registration only hours before. There is no evidence before me which establishes that the plaintiff suffered injuries of a type which suggested that he was not wearing a seatbelt. If an inference is to be drawn one way or another, I would think it would be to the effect that the plaintiff was in fact wearing a seatbelt, and the inference is certainly not the other way.

18. The extent to which his damages should be reduced is another questi on. The plaintiff's failure to take care for his own safety by entering the vehicle did not contribute to the driver subsequently losing control and colliding with a tree at the side of the road, nor indeed did the plaintiff's failure contribute to the extent of his own injury. However, I am convinced that the combined effect of the plaintiff and David Tremble accepting the offer of the lift was a causative factor in the driver not remaining with his him to throw caution to the wind, and the reduction for damages for contributory negligence must be more than nominal. I think it just and equitable in the circumstances that the plaintiff's damages be reduced by twenty-five percent for his own contributory negligence.