Russell v Edwards & Anor [2006] NSWCA 19 (3 March 2006)

CITATION: Russell v Edwards & Anor [2006] NSWCA 19

FILE NUMBER(S):

41141/04

HEARING DATE(S): 17/02/06

DECISION DATE: 03/03/2006

PARTIES:

Ashley James Russell (Appellant)

Mark Lewis Edwards (First Respondent)

Joanne Edwards (Second Respondent)

JUDGMENT OF: Beazley JA Ipp JA Hunt AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 165/03

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

COUNSEL:

J Simpkins SC/K Andrews (Appellant)

M L Williams SC/B L Jones (Respondent)

SOLICITORS:

W H Parsons & Associates (Appellant)

Thompson Cooper Lawyers (Respondents)

CATCHWORDS:

NEGLIGENCE - injury sustained by 16 year old when diving into the shallow end of a swimming pool - plaintiff intoxicated at the time of injury - liability of occupiers to adequately supervise - application of s 50 of the Civil Liabillity Act 2002 (NSW) - meaning of "self-induced intoxication" under s 50(5) of the Civil Liability Act - determination of a single cause of injury under s 50(1) of the Civil Liability Act. D

LEGISLATION CITED:

Civil Liability Act 2002 (NSW), Pt 6, s 50

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41141/04

DC 165/03

BEAZLEY JA

IPP JA

HUNT AJA

Friday 3 March 2006

ASHLEY JAMES RUSSELL v MARK LEWIS EDWARDS & ANOR

Judgment

1 BEAZLEY JA: I agree with the reasons of Ipp JA and his proposed order.

2 IPP JA: This appeal turns on Pt 6 of the Civil Liability Act 2002 (NSW), that is, the sections of the Act that deal with intoxication.

3 When the plaintiff, Mr Ashley James Russell, was 16 years old, he attended a party at the home of the defendants, Mr and Mrs Edwards. While intoxicated, he dived into the shallow end of a swimming pool in the back garden of the house. He struck his head on the floor of the pool and was severely injured. The trial judge, Sidis DCJ, held that, although Mr and Mrs Edwards had owed Mr Russell a duty of care that they had breached by failing adequately to supervise the party, they were exculpated from liability by reason of s 50 of the Act (which is in Pt 6). Mr Russell appeals against the dismissal of his claim.

4 The circumstances that led to Mr Russell being injured can briefly be stated. Mr and Mrs Edwards’ decided to hold a party to celebrate the sixteenth birthday of their son Luke. Mr Russell, together with a number of friends, attended the party. He arrived at about 8.20 pm and went to the backyard of the premises. There a fire was burning for a barbecue and 15 to 20 guests were present. Mr Russell proceeded to drink two beers from an esky that Mr Edwards had provided for the guests.

5 Other guests continued to arrive, including a friend of Mr Russell’s who brought a bottle of bourbon for the two to share. It is not clear when Mr Russell commenced consuming the bourbon. By about 10.00 pm the number of persons at the party had increased to between 25 and 30. According to Mr Russell, at that time “everyone was still drinking quite heavily and getting intoxicated”.

6 Shortly before 10.00 pm Mr Edwards told the young people, including Mr Russell, to move into the pool area. This they did. The pool was lit by lighting, described as being, at best, “adequate”. It was not suggested, however, that the lighting did not enable the bottom of the pool to be seen.

7 Drinking continued in the pool area. Mr Russell testified that the people were drinking mainly spirits, including bourbon. He was asked how he knew this and he replied:

“They just had bottles and that’s just what everyone really drank round there I think”.

At this time the guests showed distinct signs of some intoxication. They were loud, exuberant and boisterous and were using offensive language.

8 After about an hour to an hour and a half some guests began swimming in the pool. Alcohol was still being consumed. Mr Russell spent about 20 minutes in the pool. He then got out and dived in. This was the dive where he injured himself.

9 Sidis DCJ found that Mr Edwards did not adequately “patrol” the backyard. Her Honour said:

“I find that, having regard to the fact that he was aware that those using the pool area were also consuming alcohol, he exercised insufficient supervision and control over the activities of the young men in that area.”

Her Honour said:

“The current circumstances involved the defendants entertaining on their premises young persons who required by reason not only of their age but also by reason of the fact that they were permitted to consume alcohol, a considerably greater degree of supervision than the evidence established was made available to them. It is my considered view that the defendants being in a position to control the activities on their premises on that night were under an obligation, at law, to do so and that they failed in that obligation. The risk to the plaintiff in circumstances where alcohol and a swimming pool were involved, in my view, were foreseeable. The risk was such that a reasonable person in the position of the defendants ought to have recognised that preventative action should have been taken. The preventative action, in my view, would have been to have closed the swimming pool. In those circumstances on the ordinary common law basis the defendants would be responsible to the plaintiff in negligence.”

10 In the course of his cross-examination, Mr Russell was asked whether he knew what being intoxicated meant and he replied:

“When someone’s so drunk that they are unable to control their normal co-ordination skills and slurred speech, that type of thing.”

He was then asked whether, according to his definition, he was intoxicated when he dived into the pool and hurt his head. He replied in the affirmative.

11 Mr Russell agreed that at the time he dived into the pool he was unable to make a decision as to its depth. He agreed that he was intoxicated to the extent that he was unable to exercise his judgment properly. He agreed that the fact that he was under the influence of alcohol was the factor that caused him to hit his head on the bottom of the pool.

12 Sidis DCJ did not accept Mr Russell’s evidence that the bottom of the pool was not visible to him at the time he dived in and struck his head. Her Honour found that Mr Russell was affected by alcohol and that his level of intoxication was such that he had been unable to make a proper judgment concerning the depth of the water into which he dived before he struck his head on the bottom of the pool.

13 Mr and Mrs Edwards contended that they were exempt from liability to Mr Russell by reason of s 50(2) of the Act.

14 Section 50 provides:

“No recovery where person intoxicated

(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.”

15 Mr Russell argued that s 50 did not apply as the Court should have been satisfied in terms of s 50(5) that Mr Russell’s intoxication was not self-induced. Sidis DCJ found, however, that Mr Russell “was fully aware of the consequences of alcohol and that he exercised his own free will in consuming the alcohol that he had been allowed to bring to this party”. Her Honour held that Mr Russell’s intoxication was self-induced.

16 Sidis DCJ found that Mr Russell’s level of intoxication “led directly to his misjudging the depth of the pool when he dived into it and thus to his injury”. The “act or omission” that caused his injury, she held, was his act of diving into the pool and misjudging the depth. At that time he was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired. Thus, the judge found, the conditions set out in s 50(1) were fulfilled and therefore s 50(2) was of application.

17 By s 50(2), a court is not to award damages in respect of liability to which Pt 6 applies unless, relevantly, it is satisfied that the injury is likely to have incurred even if the plaintiff had not been intoxicated. Sidis DCJ found that it had not been established that the injury was likely to have occurred even had Mr Russell not been intoxicated. This finding, in substance, was not challenged and, on Mr Russell’s own testimony, it could not have been.

18 Sidis DCJ found, accordingly, that by reason of s 50(2), Mr Russell’s claim failed.

19 Mr Simpkins SC, who together with Mr Andrews appeared for Mr Russell, submitted on appeal that intoxication is not self-induced when a person becomes intoxicated without knowing how much alcohol would be needed to bring about this state. He submitted that, by reason of Mr Russell’s limited experience of drinking alcohol, he did not know what quantity of alcohol he would have to imbibe before becoming intoxicated.

20 In The Queen v O’Connor [1980] HCA 17; (1980) 146 CLR 64 (at 69) Barwick CJ referred to “self-induced intoxication” as “voluntary intoxication”. The Chief Justice discussed the difference between drinking alcohol with a view to becoming intoxicated and those cases where the effect of alcohol already imbibed detracts from a person’s capacity to determine the effects of further consumption of alcohol. The Chief Justice’s observations in this respect were largely of a ruminatory nature and did not lay down any legal principle. His Honour noted (at 71) that, even if a person was intoxicated to a substantial degree, that person would remain criminally responsible for the acts committed in that state. Even if the intoxication led to a change in personality, a warping of will, an alteration in disposition and a weakening in self-control, that person will be criminally responsible for his or her acts unless the intoxication is so great that the person has no will to act or no capacity to form an intent to do an act: see also South Tweed Heads Rugby Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 at [181]; 144.

21 In my opinion, the expression “self-induced” in s 50(5) of the Act is to be equated with “voluntary” and, in my view, voluntariness will not be negated by ignorance as to the quantity of intoxicating liquor required to make the individual concerned intoxicated. I do not accept Mr Simpkins’s argument as to the meaning of “self-induced”. I would add that there is no suggestion in the evidence that Mr Russell came anywhere near the degree of intoxication that affected his capacity to act voluntarily. I would reject the submissions based on s 50(5).

22 The crucial section for the purposes of this appeal is s 50(1), which lays down the circumstances under which the exculpatory provisions of s 50(2) apply. As the argument advanced on appeal in respect of s 50(5) fails, and as there is no challenge to the finding that the Court was not satisfied that Mr Russell’s injury was likely to have occurred even had he not been intoxicated, s 50(2) – if it applies – exempts Mr and Mrs Edwards from liability. In other words, if s 50(2) is of application, Mr Russell’s appeal must be dismissed.

23 Mr Simpkins submitted that the act or omission that caused the injury was Mr Edwards’s lack of supervision. He submitted that that lack of supervision commenced before Mr Russell was intoxicated. He argued that Mr Edwards’s failure to supervise before Mr Russell became intoxicated was “the act or omission that caused the ... injury”. On this basis, he contended, s 50(1) did not apply.

24 There are a number of difficulties with this submission.

25 Mr Simpkins’s argument does not take account of the fact that Mr Edwards’s breach of duty, as found by Sidis DCJ, was a continuing breach, and continued until the moment of injury. It seems that, at least for a substantial time during this continuing period, Mr Russell was intoxicated. Thus, the time when Mr Russell first became intoxicated needs to be determined, as it is at that stage that – on Mr Simpkins’s argument – any breach of duty on the part of Mr and Mrs Edwards needs to be assessed.

26 Even if it is assumed that Mr Edwards’s failure to supervise before Mr Russell became intoxicated was “the act or omission that caused the ... injury”, there is no finding that, at the point in time when Mr Russell first became intoxicated, there was a breach of duty on the part of Mr Edwards.

27 While Sidis DCJ found that Mr Edwards exercised “insufficient supervision and control” over the guests in the pool area, and that he should have closed the swimming pool, she made no finding as to the time when he should have done this and did not consider how he could have done it effectively.

28 The issue as to when Mr Russell first became intoxicated is complicated by the fact that Mr Russell was affected to some degree by beer before he started to consume bourbon. As I understand Mr Simpkins, the failure to supervise for which he contended occurred after Mr Russell had drunk the beer but before he began to drink the bourbon.

29 The state of the evidence is such that it is not possible for this Court to make any factual findings of the kind identified.

30 But there is an even more formidable obstacle that faces the proposition that Mr Edwards’s failure to supervise before Mr Russell became intoxicated was the act or omission that caused the injury. This is the ordinary meaning of the words in s 50(1), which require the determination of a single act or omission that “caused the death, injury or damage”.

31 It is well-established that current or successive tortious acts may each amount to a cause of an injury sustained by a plaintiff: March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. In the present case the trial judge held that Mr Russell’s intoxication and Mr Edwards’s continuing breach of duty each caused the injuries. How then is the single cause required by s 50(1) to be determined?

32 There are some indications in s 50 which could support an argument that the “act or omission” under s 50(1) is intended to be an act or omission on the part of the plaintiff. These indications are the focus given by ss 50(3) and 50(4) to the causative effect of the plaintiff’s intoxication. On the other hand, the words “at the time of the act or omission that caused the death, injury or damage” relate more to the conduct of the defendant than the plaintiff. After all, for the purposes of determining liability, an act or omission on the part of the defendant, amounting to a breach of duty, must be shown to have caused the injury.

33 A further complicating factor is that there could be several acts or omissions on the part of a plaintiff and several on the part of a defendant that could cause “the death, injury or damage”. In such a case, the task of determining “the” cause could not be undertaken simply by reference to whether the single relevant act or omission was that of the plaintiff or that of the defendant.

34 These difficulties suggest that the legislature must have intended some other means of determining the single cause.

35 The concept of a single cause of harm is well-known to the law. Until the introduction of the apportionment legislation, the last opportunity doctrine required the determination of a single cause of harm. The concept of a “proximate” cause was used to enable a single cause to be identified.

36 In insurance law, a single cause of loss, determined by reference to a “direct” or “proximate“ or “effective” cause remains, usually, an essential element in a claim for indemnity. As McColl JA said in Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66 at [39]:

“In the law of insurance it early became, and has remained, the rule to look to the proximate and not the remote cause of loss or damage in order to determine the liability of underwriters .. “.

37 In the law of insurance, there is no need to differentiate between the epithets “direct” or “proximate“ or “effective” cause as, in relation to causation, each bears the same meaning: see Australian Casualty Company Ltd v Federico ([1986] HCA 32; 1986) 160 CLR 513 at 521, Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd [1966] HCA 6; (1966) 114 CLR 437 at 447, Wayne Tank & Pump Company Ltd v Employers’ Liability Assurance Corporation Ltd [1974] 1 QB 57 at 66, Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd.

38 It is not unusual today even for statutory insurance policies to require proof of the “direct” cause of loss: see Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89, Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd.

39 The expression “directly caused by” has been used in statutes in this country in the context of legislation requiring the owners of motor vehicle to hold policies insuring against liability for death or bodily injury: Lasermax at [49].

40 In the light of the need to determine a single cause of loss in determining “the act or omission that caused the death, injury or damage” for the purposes of s 50(1), and taking account of the difficulties in finding a single cause that would otherwise be inevitable, I am of the opinion that that section must be construed as referring to “the act or omission that directly caused the death, injury or damage”. In my opinion, “directly”, in this sense is to be equated with “proximate”.

41 A direct (or proximate) cause in this sense is not the first, or the last or the sole cause of the loss; it is the effective or dominant or operative cause: Lasermax at [5]; see also the review of the authorities conducted in State Government Insurance Commission v Sinfein Pty Limited (1996) 15 WAR 434. On this basis, the Court may determine a single cause of the death, injury or damage in accordance with principles that have long been understood, including notions of commonsense: March v E & M H Stramare Pty Ltd.

42 In my opinion, in the light of the findings by Sidis DCJ, the direct cause of Mr Russell’s injury was his intoxication. Her Honour found that his level of intoxication was such that he was unable to make a proper judgment concerning the depth of the water. This prevented him from seeing and detecting the bottom of the pool. His intoxication, more than anything else, caused his loss.

43 In the circumstances, s 50(1) applies and, by s 50(2), the Court is not to award damages to Mr Russell in respect of any liability that Mr and Mrs Edwards might have had to him. In my view, the decision of Sidis DCJ should be upheld and the appeal dismissed with costs.

44 Accordingly, it is not necessary to determine whether Sidis DCJ correctly held that Mr and Mrs Edwards owed a duty of care to Mr Russell which they had breached (a matter raised by notice of contention). I express no opinion on this issue.

45 HUNT AJA: I agree with Ipp JA.

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LAST UPDATED: 03/03/2006