Miles v Williams and Anor [2013] QSC 162

In her decision handed down in June 2013, Mullins J of the Supreme Court of Queensland was required to determine the circumstances of an incident where the majority of 7 witnesses were affected by alcohol.

The decision provides insight as to the assessment of credibility where recollections of events are clouded by both intoxication and the passage of time.

It also explores the “agony of the moment” principle, where a Defendant can escape or reduce their liability if the allegedly negligent conduct was carried out in circumstances where the Defendant was forced to take immediate action without the opportunity for calm reflection.

The Background

The Plaintiff sustained serious injuries to his right and left legs on 14 January 2006 when he was run over by a Ford Festiva driven by the First Defendant in the carpark of the Robina Tavern. The First Defendant had obtained his driver’s licence a matter of days before the subject incident.

Evidence was provided by 7 witnesses, none of which Her Honour considered were credible and reliable due to the effects of alcohol and/or the effect of being upset by the events of the night.

After a detailed consideration of the evidence provided in each witness’ oral testimony and the police records, Her Honour concluded:

  • The Plaintiff arrived at the Tavern at approximately 7:00 pm having already consumed 2 schooners of full strength beer that afternoon. At the party, he consumed up to 8 schooners of full strength beer but did not believe he was “too impaired”.
  • After exiting the Robina Tavern into the carpark, either the Plaintiff’s brother or friend spat on the First Defendant’s girlfriend while she was a passenger in the Festiva;
  • The Plaintiff’s brother and friend were involved in an exchange of verbal abuse with the occupants of the Festiva;
  • Observing this altercation, the Plaintiff continued walking in the direction of the Festiva telling his brother to stop proceeding towards the vehicle;
  • The Plaintiff stopped in a position that was not directly in front of the vehicle, but at an angle of approximately 45 degrees and approximately 2 metres away;
  • The Plaintiff did not hear any warning directed at him before he heard the vehicle “rev” and suddenly move off (and even if he had, this would not relieve the first defendant of the responsibility of driving the vehicle so that it did not strike the Plaintiff);
  • It was not in issue that the front wheel of the vehicle on the driver’s side and the back wheel on the driver’s side went over the Plaintiff’s legs.

The versions

Above all of the oral testimonies provided by the witnesses, Her Honour preferred the version of events provided to police by a witness at the time of the accident. This was despite the fact that witness was not available for cross-examination.

Her Honour preferred that evidence because it was given at the time of the incident, and the reporting officer stated that while he could not recollect whether the witness was intoxicated, he would not usually take a statement from someone who was visibly affected by alcohol. The version was also consistent with that of the Plaintiff, whom she held gave a consistent and coherent recollection of events which indicated his level of intoxication did not impair him from recalling the events.

Agony of the moment

The Defendants argued that the conduct of the First Defendant was reasonable in response to a crisis or sudden emergency without the opportunity for calm reflection and where the first respondent had the responsibility of the safety of the occupants of the vehicle.

Her Honour did not accept this as while the First Defendant may have been under pressure arising from the altercation with the Plaintiff’s brother and friend, “his reaction in driving the sedan so that it struck the Plaintiff could not in any way be characterized as reasonable or excused by the agony of the moment”. The First Defendant could have reversed the vehicle or steered the vehicle away from the Plaintiff.

Further, Her Honour provided that no regard was to be had to the fact the First Defendant was an inexperienced driver.

Voluntary Assumption of Risk

Her Honour also did not accept that the Plaintiff’s conduct constituted a voluntary assumption of an obvious risk because:

  • He did not stand directly in front of the path of the vehicle
  • It was not obvious to a reasonable person in the position of the Plaintiff that the First Defendant would have driven the sedan on the path that resulted in striking the Plaintiff because there were other routes available.

Contributory Negligence

The Defendants solicitors argued contributory negligence due to both the intoxication of the Plaintiff and his standing in front of the vehicle when it could have pulled away at any time.

Her Honour opined that because the Plaintiff’s intoxication did not impair his capacity to exercise care and control for his own safety, the basis for contributory negligence could only be found in his standing near the vehicle.

Because Her Honour held the Plaintiff was not standing in front of the vehicle and would not have expected the vehicle to be driven into him, there was no contributory negligence.


The decision of Mullins J indicates that versions of events recorded at the time of the incident can be more persuasive than that of witnesses appearing at trial where there are significant issues with credibility.

Further, it provides an example of where even though an insured driver may be under pressure due to perceived or actual threats of violence, the “agony of the moment” argument may not be successful where more than one course of action is available.

A copy of the judgment may be accessed here.