Gio General Limited v Christopher Byrne Harpley [1998] ACTSC 101 (22 September 1998)

Last Updated: 13 October 1999

GIO General Limited v Christopher Byrne Harpley

[1998] SCACT 101 (22 September 1998)

CATCHWORDS

INSURANCE - exclusion clause - whether driver of vehicle under influence of intoxicating liquor - question of fact - no question of principle.

APPEAL - appeal from Magistrate - whether Magistrate bound to accept opinion of expert that respondent was likely to be under influence - advantage of Magistrate in seeing and hearing other witnesses.

EVIDENCE - expert evidence - whether uncontradicted expert evidence must be accepted - opinion of expert only one aspect of evidence - opinion based partly statistical probability - difference between statistical probability and proof on balance of probabilities.

Evidence Act 1995 (Cth), s79

Supreme Court Act 1933, s36(2)(f)

Government Insurance Office of NSW v Nowalinski (1985) 3 ANZ Insurance Cases 60-629, referred

Mackay v General Accident Insurance Company New Zealand Limited (1991) 6 ANZ Insurance Cases 61-046, referred

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, applied

Black v Lipovac and Others (Federal Court, unreported, 4 June 1998), referred

Hon Justice D.H. Hodgson, The Scales of Justice: Probability and Proof in Legal Fact-finding 69 ALJ 731

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 101 of 1998

Coram: Miles CJ

Supreme Court of the ACT

Date: 22 September 1998

IN THE SUPREME COURT OF THE )

) No. SCA 101 of 1997

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: GIO GENERAL LIMITED

Appellant

AND: CHRISTOPHER BYRNE

HARPLEY

Respondent

ORDER

Judge Making Order: Miles CJ

Where Made: Canberra

Date of Order: 22 September 1998

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. A Magistrate gave judgment for the plaintiff/respondent in a claim for indemnity on an insurance policy issued by the defendant/appellant. The policy indemnified the plaintiff against damage to his motor vehicle. The defendant relied on an exclusion clause in the policy. Its relevant provisions were:

"THIS INSURANCE DOES NOT COVER

1. Loss, damage or the incurring of a Legal Liability when the Insured or any person driving or in charge of the Insured Vehicle with the consent of the Insured is under the influence of any INTOXICATING LIQUOR OR OF ANY DRUG."

2. The Magistrate, correctly recognizing where the onus of proof lay, found that the defendant had not proved that at the time of driving the vehicle, the plaintiff was "under the influence of any intoxicating liquor". The defendant appeals against that finding.

3. The more significant of the primary facts found by the Magistrate were as follows:

* On 11 August 1995 the plaintiff finished work at 5 p.m. and thereafter at a restaurant in the city consumed a meal, three schooner size glasses of full strength beer and two glasses of whisky and cola.

* At some time thereafter the plaintiff drove his motor vehicle to the Weston Creek Bowling Club at Stirling and between then and about 12.30 a.m. consumed two middy size glasses and one small bottle of full strength beer.

* At about 12.30 a.m. the plaintiff drove from the Club with three passengers, one of whom was dropped off at Kambah.

* The plaintiff then drove in the direction of Gordon.

* The plaintiff and a friend in another car began racing each other from a number of traffic lights, but did not exceed the speed limit.

* In Knoke Avenue, Gordon, the plaintiff stopped his vehicle for a red traffic light. The other vehicle was already through the traffic lights and ahead.

* When the lights turned green, the plaintiff tried to catch up to the other vehicle, reaching 110 kilometres per hour.

* On a sweeping right-hand bend, whilst approaching a bridge over another road, the plaintiff crossed to his incorrect side of Knoke Avenue, observed an on-coming vehicle, and in attempting to cross back to the correct side of the road, lost control of his vehicle.

* The plaintiff's vehicle struck the rail of the bridge, demolishing part of it and coming to a stop a metre or so from the edge of the bridge.

* The plaintiff gave some false answers to police investigating the incident because he was "endeavouring to minimise his culpability for the cause of the accident".

* A police officer who conducted a breath analysis more than an hour after the incident, recorded, inter alia, that the plaintiff's eyes were bloodshot and that his breath bore the odour of intoxicating liquor. Other observations, including those of balance and gait indicated nothing abnormal. The officer recorded his "Opinion of Affect of Alcohol" as "slight".

* The breath analysis recorded the presence of 0.065 grams of alcohol per 100 millilitres of the plaintiff's blood.

* Evidence was given for the defendant by Dr G.A. Starmer, described by the Magistrate as a "very well qualified pharmacologist who specialises in the field of the role of alcohol on driving performance". Dr Starmer was of the opinion, assuming the primary facts already referred to, that the plaintiff's driving was "impaired" at the time of the accident and that the plaintiff would have been "at least moderately affected". The Magistrate nevertheless rejected that opinion, and contrasted it with that of the breathanalysis operator. The Magistrate concluded that neither the accident nor the manner of driving necessarily establish that the plaintiff's faculties were affected by the alcohol he had consumed. Accordingly, the Magistrate found that the exclusion clause did not apply.

4. The reference by the Magistrate to the matter as to whether the plaintiff's faculties were impaired by alcohol appears to derive from two judicial decisions cited by the Magistrate in his reasons for judgment. The first was that of Grove J in Government Insurance Office of NSW v Nowalinski (1985) 3 ANZ Insurance Cases 60-629, who said:

"...... Under the influence of intoxicating liquor connotes a disturbing of the faculties, as (sic) disturbing the balance of a man's mind, or disturbing the quiet calm intelligent exercise of the faculties."

5. His Honour repeated:

"The test of disturbance of mind or faculty is, in my opinion, appropriate and applicable."

6. The other decision was that of Tompkins J in Mackay v General Accident Insurance Company New Zealand Limited (1991) 6 ANZ Insurance Cases 61-046 as follows:

"...... The person must have consumed intoxicating liquor to the extent that at the relevant time he is under its influence. That means that the intoxicating liquor must be at a level where his faculties are influenced by the effect of it. They will be influenced if the intoxicating liquor has a material effect on his faculties to the extent that it disturbs the exercise of those faculties. In the driving context, the intoxicating liquor must be sufficient to influence the exercise of the faculties the person uses when driving."

7. No authority at appellate level was cited by counsel either before the Magistrate or in the appeal. In a sense this is not surprising since the meaning of the words is transparently plain.

8. On the other hand, I would have thought that there might have been cases concerned with the proper directions to be given to a jury in trials for offences of culpable driving, by whatever name, in which an essential element was that the accused drove whilst under the influence of an intoxicating liquor or drug. Be that as it may, it is clear that, whilst proof of impairment of the driver's ability to drive or control the vehicle is unnecessary, the evidence must show in some positive way an impairment of mind or "faculty". As Tompkins J observed, the effect must be "material". A driver refreshed by a cup of coffee (or two) could hardly be considered to be "under the influence" of the drug caffeine as the meaning of the phrase would be in the contemplation of parties to a contract of insurance in the 1990's.

9. It was submitted for the defendant in the appeal that the ultimate question whether the plaintiff at the time of collision was under the influence of the alcohol he consumed was a matter to be decided by way of inference from the primary facts found by the Magistrate, and that as nothing turned on the demeanour of witnesses, this Court in the appeal is in as good a position to decide the ultimate question as was the Magistrate. The principle is unassailable as a matter of law: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. I shall return to the matter of the application of the principle.

10. It was also submitted for the defendant that the Magistrate was not entitled to reject the uncontested evidence of Dr Starmer. No cases were cited on this issue. The extent to which a tribunal of fact is bound by an uncontradicted expression of opinion given in evidence by an expert in the relevant field of expertise, can be a difficult question. The appearance of "junk science" in the courtroom is apparently a cause for concern in the United States, particularly in the areas of medical malpractice and manufacturer's liability: see Black v Lipovac and Others (Federal Court, unreported, 4 June 1998 at par84). Much depends on the nature of the field of expertise, the court's ability to recognize the limits of the field and the willingness of the expert to stay within those limits. Section 79 of the Evidence Act 1995 (Cth) extends the admissibility of expert evidence beyond the field of expertise and, whilst this obviates sterile arguments about the difference between matters of common knowledge and matters of expertise, it does not assist the task of the fact finder either in finding the facts or in giving reasons why an expert's opinion should be rejected.

11. In the present case the Magistrate stated that "Dr Starmer is clearly undertaking a statistical exercise", and that the confidence of Dr Starmer and the conclusive nature of his language "should not be allowed to cloud this point". No doubt the Magistrate was correct in those observations as they related to part of Dr Starmer's evidence and the methodology by which Dr Starmer reached his ultimate conclusion. However, the Magistrate did not expose any error or fallacy in Dr Starmer's methodology and, in the absence of such exposure, I do not think that it was a valid methodology on the Magistrate's own part to have considered Dr Starmer's opinion in isolation, more or less, to then reject it as "a statistical exercise", and then to proceed to consider whether the primary findings led to the ultimate inference that the plaintiff was under the influence at the relevant time. Dr Starmer's opinion was reached not only as a matter of "a statistical exercise": Dr Starmer also took into account the primary facts, or some of them, that were established to the Magistrate's satisfaction. Dr Starmer did not make any assumptions or take into account any primary facts which were contrary to those found by the Magistrate.

12. The statistical probability, that a driver with the blood alcohol content of the plaintiff, is under the influence of alcohol, was itself one of the primary facts that the Magistrate was required to take into consideration. As I read the judgment, the Magistrate did take that primary fact into account before reaching his final conclusion. But he gave it less weight than did Dr Starmer. The apparent inconsistency between the Magistrate's final conclusion and the statistical probability to which Dr Starmer attested is not a real one. Scientific notions of probability and the legal concept of proof on the balance of probabilities may overlap, but they are by no means identical: see Hon Justice D.H. Hodgson, The Scales of Justice: Probability and Proof in Legal Fact-finding 69 ALJ 731. In principle, an expert opinion cannot pre-empt the ultimate decision of a court, although there may be cases in which the circumstances are such that there can be no rational basis for the court's decision differing from that of the expert. This is not such a case. Hence, whilst I think that the Magistrate appears to have rejected Dr Starmer's opinion for a wrong reason, it was nevertheless open to the Magistrate to reach a conclusion which conflicted with Dr Starmer's opinion.

13. I return to the question of what inference the Court on appeal should draw from the primary facts. What is in issue is a state of mind. A state of mind is often reflected in conduct. Bearing in mind the judicial emphasis that the insurer was bound to prove some disturbance of the mind or "faculties" (noting in particular Grove J's reference to "disturbing the quiet calm intelligent exercise of the faculties"), there must be some assistance in looking at the manner of the plaintiff's driving. The Magistrate did not say much about this, but the photographs in evidence are eloquent. I know nothing about the injuries to the plaintiff or to his passengers, but clearly they are all lucky to be alive. The plaintiff's vehicle knocked out several metres of a metal railing on the bridge before it came to rest. Another metre or two and the vehicle would have dropped from the bridge to the road beneath. The appearance of the vehicle is not much different from what might be seen nightly on television, but it is still an horrific sight. The question immediately arises: what driver in his right mind would drive at 110 kilometres per hour on the wrong side of the road in a suburban street approaching a bridge? Surely there is a prima facie hypothesis that this driver was one in whom the ordinary inhibitions and "the quiet calm intelligent exercise of the faculties" were lacking. Is that hypothesis confirmed by the other facts? the confirmation is there: the driver's inhibitions were likely to be reduced because he was under the influence of the alcohol which he had previously consumed. In other words, it is unlikely that the driver would have driven in such a manner unless influenced by the alcohol which he had consumed and which was still in his blood in a concentration of 0.065 grams per 100 millilitres. That to me is the crux of the matter. However, the Magistrate did not regard it as the crux of the matter. As a fact finder he was not bound to do so. Fact finders approach their task in different ways. Juries are routinely told that, although their verdict must be unanimous, they are not required each to follow the same path that leads to the unanimous decision. But the Magistrate did give some attention to the course of driving insofar as it reflected the plaintiff's state of mind. He said:

"Accidents occur even when drivers are completely sober, and young male drivers, particularly, all too frequently drive in excess of the speed limit and dangerously when they have not been consuming alcohol. Indeed, in his evidence before me, the plaintiff conceded that he enjoyed the thrill of speeding."

14. Though not without considerable misgiving, I think that I am obliged to accept the Magistrate's finding, implicit in this passage, with the advantage of seeing and hearing the plaintiff give evidence, that the plaintiff could have driven as he did simply because he, as a young man, enjoyed what he called "the adrenalin rush". The Magistrate apparently formed the view that the plaintiff could have driven like he did whether affected by liquor or not. Therefore, the Magistrate thought that the defendant had not discharged the onus. In the light of the whole of the evidence, I think that that approach and conclusion were open to the Magistrate.

15. The appeal will be dismissed. The practice is that costs follow the event, but the law is that costs are within the discretion of the Court: Supreme Court Act 1933, s36(2)(f). Unless the parties wish to be heard, I propose that the parties bear their own costs of the appeal.

I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 22 September 1998

Counsel for the appellant: I.G. Harrison SC

Solicitors for the appellant: Ken Cush & Associates

Counsel for the respondent: B. Meagher

Solicitors for the respondent: Scott Sheils & Glover

Date of hearing: 2 September 1998

Date of judgment: 22 September 1998