Desmond v Cullen [2001] NSWCA 238 (23 July 2001)

Last Updated: 24 July 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Desmond v Cullen [2001] NSWCA 238

FILE NUMBER(S):

40515/00

HEARING DATE(S): 18 June 2001

JUDGMENT DATE: 23/07/2001

PARTIES:

Peter John Desmond v John Charles Cullen

JUDGMENT OF: Spigelman CJ Young CJ in Eq Grove J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 379/95

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

COUNSEL:

F. McAlary QC with P. Fitzsimmons (Appellant)

C. Hoeben SC (Respondent)

SOLICITORS:

Abbott Tout (Appellant)

Curwood & Partners (Respondent)

CATCHWORDS:

NEGLIGENCE

CONTRIBUTION BETWEEN TORTFEASORS

APPELLANT MOTORIST LIABLE TO PAY DAMAGES TO RUN DOWN PEDESTRIAN

INTOXICATION OF PEDESTRIAN

CLAIM BY APPELLANT FOR INDEMNITY OR CONTRIBUTION FROM RESPONDENT HOTEL LICENSEE WHO SERVED PEDESTRIAN WITH LIQUOR

SUFFICIENCY OF EVIDENCE TO ESTABLISH BREACH OF DUTY OF CARE BY RESPONDENT TOWARDS PEDESTRIAN

SUFFICIENCY OF EVIDENCE OF CAUSATION

OBSERVATIONS ON POTENTIAL LIABILITY OF INNKEEPERS D

LEGISLATION CITED:

DECISION:

APPEAL DISMISSED WITH COSTS

JUDGMENT:

The appellant was the driver of a motor car which collided with a pedestrian who was walking to his home which was situated about 700 metres from a hotel at which he had consumed a significant quantity of liquor. The pedestrian claimed damages against the appellant who sought indemnity or contribution from the respondent publican in respect of such damages. Consent judgment was entered in favour of the pedestrian against the appellant and the trial judge dismissed the claim against the respondent.

HELD: It can be accepted that the licensee of the hotel owed a duty of care to patrons of the hotel and the duty is not confined to performance within the boundary of the hotel property however the evidence in the case did not establish breach of any such duty nor did it establish a causative link between the injury suffered by the pedestrian and his inebriation and hence give rise to contribution by the respondent to damages payable by the appellant to the pedestrian.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40515/00

DC 379/95

SPIGELMAN CJ

YOUNG CJ in Eq

GROVE J

Monday 23 July 2001

Peter John DESMOND v John Charles CULLEN

JUDGMENT

1    SPIGELMAN CJ: The facts, issues and submissions are outlined in the judgment of Grove J which I have read in draft. I agree with his Honour's conclusions and, subject to the following observations, with his Honour's reasons.

2    The liability sought to be imposed upon the licensee of a hotel does not arise in the context of a relationship in which the existence and incidents of a duty of care have been well established by a long line of authority. In this case, the following observations of Gleeson CJ, with whom Gaudron and Hayne JJ agreed, in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; [2000] 75 ALJR 164 at [14], are pertinent:

"In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable."

3    Harm in the present case was personal injury, of which the immediate cause was negligent driving, suffered by a patron of a hotel when walking home from the hotel. Issues of duty, breach and causation arise.

4    It is not necessary in the present case to identify the boundary of the duty owed by a licensee of a hotel to patrons of the hotel. It is sufficient to say that I agree with Grove J that that boundary cannot be confined to the curtilage of the property of the hotel, as suggested by the trial judge.

5    I am prepared to assume that the scope of the duty extends to an obligation to refuse to continue to serve a client of the hotel, when that client passes a certain state of inebriation, a state perhaps not capable of definition, but capable of assessment. For the reasons indicated by Grove J, the Appellant did not establish a breach of any such duty. The injured Plaintiff was in a shout and the Appellant failed to prove what the Plaintiff's condition was when he himself was served. It was not suggested that the duty of a licensee would extend to controlling one patron buying drinks for another.

6    Reliance was primarily placed on a duty, said to be imposed on a licensee, to take steps to ensure that an intoxicated patron does not leave the hotel in such a manner, whether by driving or walking, as to constitute a danger to himself and, presumably, to others. Mr F McAlary QC, who appeared for the Appellant, abandoned the proposition that the licensee's duty extended so far as to prevent the Plaintiff leaving the hotel. Other particulars of breach were, however, relied upon. The contention of the Appellant was that the licensee was obliged to ensure that the patron, the Plaintiff below, was driven to his home by a taxi, an employee of the hotel or another responsible person.

7    It is not necessary to decide in this case whether the duty of care owed by a licensee extends to the taking of positive steps to ensure the safety of a patron, in circumstances where the patron should be expected to do so. The law of torts has never established a firm line identifying when the principle of volenti ceases to operate and questions of contributory negligence cut in.

8    The emphasis to be given to acceptance by an individual of responsibility for his or her own conduct is a matter which differs from one society to another and, within a society, differs from time to time. In this, as in other respects, the Canadian law of torts reflects conditions of that society. Differences in statutory regimes in what is, in most societies, a regulated industry, both reflect such variations in conditions and also impinge on the determination of the scope of a common law duty. (See generally: Orr "Is an Inkeeper her Brother's Keeper? The Liability of Alcohol Servers" (1995) 3 Torts LJ 239; Solomon and Payne "Alcohol Liability in Canada and Australia: Sell Serve and be Sued" (1996) 4 Tort LR 188; Fridman "Non-Vicarious Liability for the Acts of Others" (1997) 5 Tort LR 102).

9    The Canadian cases relied upon by the Appellant need to be treated with considerable caution. (Jordan House Ltd v Menow (1973) 38 DLR (3rd) 105, Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222). It is not necessary to decide whether the application of those cases by Derrington J in Johns v Cosgrove (1997) 27 MVR 110, was correct. The decision in that case was set aside in subsequent proceedings based on the Plaintiff's fraud at the trial (Cosgrove v Johns [2000] QCA 157). A new trial was ordered in circumstances in which the reasons of Derrington J were not directly in issue. However, Thomas JA, with whom de Jersey CJ and McMurdo P agreed, said at [99]:

"Needless to say, upon such trial the court will not be bound to reach the same conclusions on fact or law as those reached by Derrington J."

10    In the present case, the Appellant did not establish that the Plaintiff had reached such a state of inebriation as rendered him incapable of making reasonable decisions on his own account. One of his friends, with whom he had been drinking, indicated that they would arrange to take him home. Taxis were available outside the hotel. The Plaintiff could walk home, without crossing the road, over a short distance, a significant proportion of which was not next to the road. This combination of circumstances does not suggest that this was a case in which any of the steps propounded by the Appellant, each of which involved, effectively, the incurring of costs by the licensee, were steps which a reasonable person ought to have taken to avert the risk of injury to the Plaintiff in this case.

11    As Mason J said in Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 at 47-48:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflict to responsibilities which the defendant may have. It is only, when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

12    Conducting the requisite balancing exercise in the present case leads me to the conclusion that the steps which the Appellant contends the licensee should have taken were not steps that a reasonable person in the position of a licensee ought to have taken, in all of the circumstances to which I have referred. There was, in my opinion, no breach, even if the duty extended, as the Appellant contended, to take positive steps to ensure the safety of the Plaintiff.

13    I also agree with Grove J that the Appellant fails on the issue of causation. The evidence relating to the connection between the Plaintiff's state of inebriation and the injury he suffered, never rose above the level of a mere possibility. The fact that he was walking home in a state of intoxication was not shown to have made a material contribution to the injury he suffered The Appellant had to show a material contribution at the level of probability, not possibility. (See the authorities collected in Seltsam Pty Ltd v McGuinnes [2000] NSWCA 29; (2000) 49 NSWLR 262 at [80]- [83]). It did not do so. For this reason also the appeal should be dismissed.

14    YOUNG CJ in Eq: I agree with Grove J and also with the additional observations of the Chief Justice.

15    GROVE J: This is an appeal from the judgment of Taylor DCJ in favour of a third party joined in an action by a defendant.

16    Richard John Gloyn (the plaintiff) sought damages to compensate him for injuries and losses sustained when, as a pedestrian, he was struck by a motor vehicle driven by Peter John Desmond (the defendant/the appellant) in Fishery Point Road, Bonnells Bay shortly after 1 am on 3 September 1994. The appellant joined Peter John Cullen the licensee of the Bay Hotel (the respondent) by a third party notice filed in accordance with the District Court Rules. The notice specified a claim for "contribution towards or indemnity" for any verdict in favour of the plaintiff against the respondent. It was pleaded as follows:

"1. At all material times the Respondent was the licensee of the Bay Hotel Motel situated in Fishery Point Road, Bonnells Bay in the State of New South Wales ("the Hotel").

2. The Respondent by his employees servants and/or agents served alcohol to the Plaintiff on 3 September 1994.

3. The Respondent knew or ought to have known that when the Plaintiff left the hotel on 3 September 1994, he was under the influence of alcohol.

4. The Plaintiff claims that whilst walking in a southerly direction beside Fishery Point Road, Bonnells Bay, he was injured by a car being driven by the Defendant in a southerly direction upon the same street, which is denied by the Defendant.

5. The Defendant says that any loss and damage allegedly suffered by the Plaintiff, which is denied by the Defendant, was caused by the negligence of the Respondent by his employees servants and/or agent.

PARTICULARS OF NEGLIGENCE

The Respondent by his employees servants and/or agents was negligence in that he:

(a) failed to prevent the Plaintiff from leaving the premises of the Hotel whilst obviously intoxicated by alcohol that his ability to take care for his safety was impaired.

(b) failed to call the police to accompany the Plaintiff safely to his home.

(c) failed to insist that the Plaintiff stay at the Hotel.

(d) failed to obtain a taxi to take the Plaintiff home.

(e) continued during the course of the Plaintiff's attendance at the Hotel, to serve or permit the Plaintiff to be served with alcohol when the Plaintiff was intoxicated.

(f) failed to obey the provisions of Section 125(1) and (3) of the Liquor Act 1982 (NSW), in that he permitted intoxication on his licensed premises and allowed liquor to be sold to the Plaintiff who was at the time in a state of intoxication."

17    Senior counsel for the appellant (who did not appear at trial) in submissions to this Court particularized breaches of duty by the respondent in these terms:

"The Respondent did not take any steps to meet the risk of physical injury to the Plaintiff arising from his intoxicated condition namely the Respondent did not drive the Plaintiff to his house, or call a taxi cab and offer him a cab fare, arrange for an employee or responsible person to accompany the Plaintiff home."

18    The contentions that the respondent ought to have driven the appellant to his house (other than by taxi) or should have arranged an escort home (other than by police) do not appear to have been advanced at first instance where the learned trial judge recapitulated in his judgment the particulars paragraphed (a) to (f) above. The contentions just mentioned were not among the specifics in the particulars. However, no objection was expressed by senior counsel for the respondent and, as in my view the variation does not affect the outcome of the appeal, it may simply be noted. The hearing in the District Court had proceeded for several days when the plaintiff's claim against the defendant was settled by agreement that there be judgment for the plaintiff in the sum of $405,000.00 inclusive of legal costs and disbursements. The claim by the appellant against the respondent for indemnity or contribution to satisfaction of that judgment proceeded for determination.

19    On Friday 2 September the plaintiff was engaged in heavy labouring work. He finished work at about 5 pm, returned home, showered and then accompanied a friend John Metcalf to dinner at Morisset Country Club. Later they went to the Bay Hotel where a band was performing. At both venues the plaintiff consumed schooners of beer.

20    At the hotel they were joined by others identified only as "the Irishmen". Mr Metcalf left between 9.30 and 10.30 pm but the remainder of the group stayed at the hotel.

21    His Honour made a series of findings categorized as "salient features" of the case. In summary, these were that the plaintiff was a regular patron at the hotel but rarely seen affected by alcohol to the stage where he fell down drunk. On the evening in question a bar attendant sold him seven or eight beers but it was not known what quantity he personally consumed. He usually purchased beer in "a shout". At one point the plaintiff went to sleep (the evidence is at about midnight) and at closing time (near 1 am) he was spoken to by the Assistant Manager and his friends (the Irishmen) said they would look after him.

22    The plaintiff lived about 700 metres from the hotel. It was not necessary for him to cross the road to get home. There were usually taxi cabs available but on previous occasions the plaintiff had declined the offer to use one.

23    The bar attendant described his condition on her final observations of him as displaying "the wobbly boot" but that he was capable of walking.

24    His Honour made no findings concerning the specifics of the particulars now advanced that the respondent did not drive the plaintiff home or escort him there. It can be inferred that they were not raised in those terms at the hearing and the absence of finding was not the focus of express criticism.

25    The collision between the appellant's car and the plaintiff occurred in an unlit area. The road was 6.6 metres wide consisting of a bitumen surface with centre lines and, on what was described as the southern side, a gravel edge abutting a narrowing grass verge. This in turn was joined from beyond the verge by a wider stretch of gravel forming a type of pathway. The plaintiff was found face down on or near the bitumen edge. Point of impact could not be established. Constable King, a highway patrol officer who attended the scene thought that it was most likely that the vehicle was (at impact) on the bitumen but his stated reason was that he had had regard to where he had seen fragments of glass and paint. The appellant's car was blue however blue paint chips were located both off and near the edge of the bitumen. It is apparent also that Constable King was unaware that the respondent's car windscreen did not disintegrate on impact but became crazed after which the vehicle continued to progress and the appellant "punched out" a hole. Clearly therefore the location of glass fragments could not have been indicative of the point of impact.

26    The appellant testified that he was unaware that he had struck a human being. He (and his passengers) thought that some miscreant had thrown a rock at the car. The respondent drove home and the group returned through the bush for the stated purpose of apprehending the rock thrower. People had gathered at the scene and the respondent, realizing what had happened, panicked and withdrew "into a shell". He remained in the bush. His companions spoke to bystanders but they did not convey information about the plaintiff having been struck by the appellant's vehicle. The appellant replaced his broken windscreen but there was a dent in the bonnet of his car just to the offside of the nearside head light. In due course his involvement was established to police. In evidence he confirmed that he never saw the plaintiff prior to impact. One of his passengers testified to like effect.

27    Mr McAlary QC who appeared with Mr Fitzsimmons for the appellant noted that his argument did not depend upon whether the plaintiff was on or off the bitumen when he was struck but, if necessary, would contend that he was on the bitumen. Taylor DCJ made no finding in this regard. Given the flawed basis of Constable King's assessment and the imprecision of other evidence that contention is not made out.

28    The learned trial judge found in favour of the respondent on the basis that his duty of care did not extend to responsibility towards the plaintiff beyond the hotel premises and its curtilages and that he had discharged any responsibility in respect of the plaintiff whilst he was on the premises. His Honour said:

"The (Respondent) discharged his duty to the Plaintiff whilst he was within and departing the licensed premises. This is particularly so because the service of intoxicating liquor was stopped. He was asked to leave and there were security persons stationed at the exit and supervising the rear of the carpark.

The (Respondent's) duty did not extend to the Plaintiff at the point where after leaving the hotel he walked alongside the road and was struck by the (Appellant's) vehicle some hundreds of metres from the hotel."

29    The approach taken by his Honour was identified as deriving from Oxlade v Gosbridge Pty Ltd & Ors unreported CA (NSW) 18 December 1998 where Mason P had said:

"............a duty to exercise reasonable care to protect patrons has been imposed on the manager of a hotel as regards intoxicated or dangerous customers. Whatever the outer limits of such duty, it encompasses the protection of a patron while he or she is on or departing from the licensed premises ............"

There was obvious distinction from the present circumstances in that Oxlade involved injury from a chain of events caused by those to whom liquor had been provided whereas in this case it was the injured party to whom liquor had been supplied. Ms Oxlade was driving from a hotel car park when she was harassed by intoxicated patrons of the hotel and, in fear, she sought to drive away at speed and in doing so collided with an innocent pedestrian. A judgment that the hotel operators contribute to damages payable by Ms Oxlade to the pedestrian was upheld.

30    The appellant's submissions were introduced by a proposition that the major issue in the appeal was whether in the circumstances found by the trial judge, a duty of care had arisen at common law. The existence of a duty of care was not disputed by the respondent but the content of the duty and the breach of it were contested and by notice of contention, an issue of causation was raised.

31    Having regard to authorities such as Perre v Apand Pty Limited [1999] HCA 36; (1999) 198 CLR 180 and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1, Mr Hoeben SC for the respondent acknowledged that the law of negligence had potential for expansion by consideration of novel areas on a case by case basis. He conceded that the owing of a duty of care by the occupier of a hotel to persons lawfully on premises was not in doubt but the issue in this case, he contended, was novel in that the harm arose out of negligent driving by the appellant over whose actions the respondent had no control. The mere absence of control will not extinguish liability but tests including foreseeability and causation need to be fulfilled. Foreseeability extends to the risk of wrongful intervening conduct by another including negligent driving on a roadway: Chapman v Hearst [1961] HCA 46; (1991) 106 CLR 112.

32    Attention was directed to Johns v Cosgrove 1997 27 MVR 110 to which I will later make more detailed reference particularly in relation to its application of principles arising out of identified Canadian authorities. Before turning to these, I should mention the situation regarding United States cases which were the subject of reference in some submissions.

33    United States authorities are of limited assistance. Nearly half of the States have "dram shop laws" for example the Liquor Control Act of Illinois which provides:

"Every person who is injured within the State in person or property by any intoxicated person has a right of action in his or her own name severally or jointly, against any person............who, by selling or giving alcoholic liquor ............ causes the intoxication."

34    Some States have developed and applied doctrines of statutory tort which resemble but do not parallel concepts in Australia of liability for breach of statutory duty. I find no utility for present purposes in the United States case references.

35    The Canadian Supreme Court has recognized a liability extending to events beyond the premises of an innkeeper. Express reliance on Canadian authority in Johns v Cosgrove attracts examination in some detail. Jordan House Ltd v Menow & Honsberger 1973 38 DLR (3d) 105 concerned the liability of an innkeeper whose hotel was located on a busy highway running between Hamilton and Niagara Falls. Menow was a frequent drinker who tended to drink heavily, so much so that there was issued a management instruction that he was not to be served liquor unless he was with a responsible adult. On the night in question he was alone and was served past the point of apparent intoxication. He wandered about the premises annoying other patrons. The manager, found to be aware that Menow was drunk, alone, on foot and wearing dark clothes, turned him out of the hotel. Menow got a lift from a passing motorist but was let off whereupon he staggered along the highway and was struck by Honsberger's car. This occurred about half an hour after he left the hotel. It was noted that Menow had not chosen to proceed directly home. An apportionment of responsibility equally between the innkeeper, the driver and the inebriate was upheld.

36    Some observations should be made. In the leading judgment Laskin J avoided resting his judgment on the hotel having done something affirmatively to place Menow at risk (as the trial judge had done) and he held that statutory provisions proscribing service to intoxicated persons were "indirectly" relevant. In a concurring judgment Ritchie J focussed on the act of serving a customer known to have a "propensity for irresponsible behaviour under the influence". I add that, although not referred to in the judgments, it has been noted that Ontario, the province in question, had a form of dram shop law which offered recovery to third parties in respect of person and property and to inebriates who suicided or were fatally injured: Liquor Licence Act 1960 (Ontario). See generally the article by G. Orr 1995 Torts Law Journal 235.

37    Jordan House Ltd was approved in a judgment of the Full Court of the Supreme Court of Canada delivered by Major J in Mayfield Investments Limited v Stewart 1995 121 DLR (4th) 222 at 232:

"Historically, the courts have been reluctant to impose liability for a failure by an individual to take some positive action. This reluctance has been tempered in recent years where the relationship between the parties is such that the imposition of such an obligation has been warranted. In those cases, there has been some `special relationship' between the parties warranting the imposition of a positive duty. Jordan House Ltd v Menow, ............ was such a case."

38    The law in Australia does not recognize a "special" relationship between an innkeeper and his customer. The contrary was not argued and Mr McAlary QC relied on principles as above noted for establishment of a duty of care.

39    As noted, the appellant did rely upon Johns v Cosgrove a Queensland Supreme Court decision which, upon facts found to be established at trial (it is not necessary to trace subsequent factual revelations or consequences) concerned a customer (the plaintiff) becoming intoxicated at the hotel "in accordance with his usual habit". After departure from the hotel he "swayed" into the path of a car after gripping a bus stop sign adjacent to a busy four lane road in the city of Brisbane. The trial judge apportioned responsibility: 45 percent against the plaintiff, 30 percent against the innkeeper and 25 percent against the driver. He stated:

"Again, the primary responsibility was the plaintiff's but, knowing that an intoxicated person would place himself into a position of danger on leaving the hotel, a publican cannot continue to supply him with the means of greater intoxication without regard to the danger to which he is thereby contributing. While the plaintiff's fault is enlarged because he deliberately drank intending to become heavily intoxicated, there is some substance to the argument that at a certain stage his judgment as to how far he should go would be impaired.

There are authorities in Australia, England and Canada supporting the principle that a publican must take reasonable care in such circumstances not to contribute to the danger in this way: Chordas v Bryant (Wellington)Pty Ltd [1988] FCA 462; (1988) 20 FCR 91; 91 ALR 149; Hay v Sheargold (unreported, SC (NSW)), 18/4/96, Dunford J; Munro v (Porthkerry) Park Holiday Estates Ltd (1984) TLR 138; Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222, approving Jordan House Ltd v Menow (1973) 38 DLR (3d) 105, which in essential detail was close to the present case in principle."

40    For completeness and to note distinguishing circumstances I record that Chordas concerned an attack by one patron upon another upon licensed premises and turned upon issues very different therefore from the present case. Munro (the only English reference) did include an observation by Beldam J that a licensee's duty of care extended to a duty to guard against danger arising from a customer's inability to take care of himself because of excessive consumption of alcohol, but he dismissed the claim for lack of evidence that the licensee or that the customer had in fact reached a stage of intoxication whereby he could not take care of himself. Hay was a case where a paying guest at a country hotel fell in the area of an unlit stairway after he had consumed considerable intoxicating liquor. Both the lessee and the licensee/manager were held liable the latter on the basis that he should have been aware that the guest was intoxicated and was in breach of a duty to ensure that he was safely conducted to his room.

41    None of these authorities delineate relevant limits in present context of the content of the duty of care conceded by the respondent to exist. It was the express submission of the appellant that the respondent's omission to take any of the steps (driving home, calling a taxi or providing an escort) involved breach of duty of care occurring within the hotel or its curtilage. I accept that the duty of care of an innkeeper extends to refraining from serving intoxicating liquor to the apparently inebriated and, if inebriation does occur, to take reasonable steps in the circumstances in respect to the safety of the inebriate. The fact that an occurrence takes place beyond the physical limits of the hotel and its curtilages does not necessarily take it outside of the range of duty nor does it inevitably demonstrate discharge of duty. It is not practicable to mark the limits of potential liability nor is it required for present purposes as, for reasons to which I now turn, the appellant's claim against the respondent must fail.

42    The essence of the appellant's argument was a proposition that the respondent allowed the plaintiff in his inebriated condition to leave the hotel unaccompanied and to walk along an unmade gravel track beside an unlit bitumen road in the middle of the night. Thus the physical injury, albeit that it arose from the negligence of the appellant, was materially contributed to by the plaintiff's intoxicated condition. The risk of injury was foreseeable in that it was neither remote nor fanciful to postulate the risk falling due in a traffic accident of the kind which happened.

43    There was no evidence that the respondent knew that the plaintiff was affected by liquor beyond the observation of the bar attendant that his locomotion displayed the "wobbly boot". The quantity of liquor purchased would not provide an indicator of consumption where a patron was in "a shout" when, no doubt, his purchases were distributed among others and he shared in theirs. The appellant relied upon a blood sample taken at the hospital showing an alcohol concentration of 0.246 grams per 100 millilitres of blood and the opinion of Professor Starmer that at the time of the accident the concentration would have been considerably higher. This provided foundation for an opinion that it was "difficult to imagine" that the plaintiff's ability to perceive the dangerous proximity of a vehicle, to recognize its threat and to have sufficient co-ordinative ability to avoid it would not have been severely compromised by alcohol. It was necessary for the appellant to prove facts, not merely to offer hypothesis, in order to succeed. There was no evidence that the compromise of any ability of the plaintiff such as those mentioned played any part in his being run down by the appellant's car. His Honour's findings that the plaintiff was capable of walking and had presented no particular problem on the evening (at the hotel) would not support conversion of the theory into a probability.

44    Insofar as it is now alleged that the respondent should have taken or escorted the plaintiff home, it sufficed to discharge any duty of the respondent to rely upon the proffered assistance of the plaintiff's friends who said to the respondent's representative that they would look after him. There was no evidence that the plaintiff would have accepted the offer of a taxi to take him 700 metres home, indeed having rejected such an offer on previous occasions, the available inference is that it is likely that he would have done so again.

45    The position of the respondent raised by way of notice of contention was even stronger.

46    Given Professor Starmer's opinion that the motor coordinative ability of the plaintiff had been severely compromised by the alcohol intake represented by the analysed blood level, there was simply no evidence that any compromise of ability contributed to the accident. There was no evidence that the plaintiff did anything apart from merely being present which contributed to the accident. As previously stated his Honour accepted that the plaintiff was seen to leave with the "wobbly boot" but he found that he was capable of walking. This is not surprising having regard to other evidence to which his Honour did not refer, but I note that Mr Manile appeared to have been the last person to sight the plaintiff before the collision and he observed that the plaintiff was walking off the left hand side of the road in the vicinity of where the path was.

47    The appellant's argument on causation is critically dependent upon an assertion that the risk of injury to the plaintiff was increased by his intoxication. To assert this without context does not advance matters beyond the theoretical. Accepting that causation relates to apportioning responsibility according to common sense ideas rather than philosophical or scientific notions: March v Stramare (E & MH) Pty Limited [1991] HCA 12; (1991) 171 CLR 506, common sense requires connection between the increase of risk and the damage suffered. It is no more than speculation to assert that the plaintiff must have done something to contribute to the collision: cf Bendix Mintex Pty Limited v Barnes 1997 42 NSWLR 307. The evidence did not establish that the plaintiff in any way placed himself into the path of the car. No occupant of the car even saw him. It is not an axiom derived from human experience that those who are intoxicated contribute to being run down by motorists. On the contrary, experience shows that perfectly sober pedestrians become victims of negligent drivers.

48    The evidence failed to demonstrate that any intoxication of the plaintiff was connected with the circumstances of the accident.

49    I would dismiss the appeal.

LAST UPDATED: 23/07/2001