McLean v Nominal Defendant  QDC 73
In the recent decision of McLean v Nominal Defendant, McGill DCJ declined to make a finding against the Plaintiff for contributory negligence due to intoxication under s47 of the Civil Liability Act 2003 (Qld) however noted that if the Defendant had pleaded contributory negligence under the common law, he would have reduced the Plaintiff’s damages by 20%.
The factual findings of the Court were that on 8 March 2009 the Plaintiff was walking home from a tavern after an extended period of drinking when he was struck by an unidentified vehicle while crossing the road, suffering injuries to both of his feet. The Plaintiff had been crossing the road in the vicinity of a roundabout and the offending vehicle had just exited the roundabout when it came upon the Plaintiff. The vehicle was never identified and it failed to remain at the scene.
There were no witnesses to the incident and the Plaintiff could only describe the vehicle as a white VN Commodore. The Plaintiff therefore pursued a damages claim against the Nominal Defendant as the insurer of the vehicle was unable to be identified.
The Plaintiff was apparently found after the accident on or near the roadway by an elderly couple who took him in their car back to the Plaintiff’s sister’s home, where he ended up lying on the front lawn. This is where he was found by ambulance officers, reportedly in ‘some distress’ and ‘adversely affected by alcohol’.
The Defendant challenged the Plaintiff’s evidence regarding the circumstances of the accident as, in the Defendant’s view, there were a number of inconsistencies in the Plaintiff’s various accounts of the accident.
Police investigations at the alleged location of the accident also failed to locate any debris or other evidence that an accident had occurred involving a motor vehicle.
Ultimately, his Honour accepted that the Plaintiff had been struck by an unidentified vehicle as alleged, and that the driver of the vehicle was negligent for failing to keep a safe lookout for pedestrians crossing the road.
Section 47 of the CLA
Section 47 of the Civil Liability Act 2003 (Qld) states as follows:
47 Presumption of contributory negligence if person who suffers harm is intoxicated.
(1) This section applies if a person who suffered harm was intoxicated at the time of the breach of duty giving rise to a claim for damages and contributory negligence is alleged by the defendant.
(2) Contributory negligence will, subject to this section, be presumed.
(3) The person may only rebut the presumption by establishing on the balance of probabilities—
(a) that the intoxication did not contribute to the breach of duty; or
(b) that the intoxication was not self-induced.
(4) Unless the person rebuts the 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 decided by the court to be appropriate in the circumstances of the case.
(5) If, in the case of a motor vehicle accident, the person who suffered harm was the driver of a motor vehicle involved in the accident and the evidence establishes—
(a) that the concentration of alcohol in the driver’s blood was 150mg or more of alcohol in 100mL of blood; or
(b) that the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle; the minimum reduction prescribed by subsection (4) is increased to 50%.
The Defendant relied on s47 of the CLA in its pleadings however made no allegation regarding common law contributory negligence.
His Honour accepted that the Plaintiff was intoxicated within the meaning of the Act at the time of the accident and that the presumption of contributory negligence therefore arose in accordance with s47(2). His Honour also noted however that the Plaintiff can rebut this presumption in accordance with s47(3)(a) if he can show that the intoxication did not contribute to the breach of duty.
According to McGill DCJ, the breach of duty in question was the failure by the driver of the unidentified vehicle to exercise reasonable care in the circumstances. He stated that:
“That failure, as I have indicated, was essentially one of failure to keep a sufficient lookout to be aware of the presence of the plaintiff as he approached and negotiated the roundabout. Had he been travelling at a reasonable speed for that exercise, he ought to have been able to stop quite quickly, or, with even less warning of the presence of the plaintiff, to swerve slightly to the right so as to avoid him. In the circumstances, he must have only just struck the plaintiff, so not much of a swerve would have been necessary. But essentially the breach of duty was in failing to be aware either at all or in sufficient time before the accident of the presence of the plaintiff on the road. I do not accept that the plaintiff’s intoxication contributed to that breach of duty. The lack of a proper lookout on the part of the unidentified vehicle obviously had nothing to do with the intoxication or otherwise of the plaintiff.”
Common Law Contributory Negligence
Just in case this was not bad enough news for the Defendant, his Honour then went on to point out that no basis for contributory negligence other than under s47 of the CLA had been pleaded by the Defendant and the Defendant should therefore not be entitled to rely on common law contributory negligence.
His Honour went on to say:
“It may be accepted that as a result of the plaintiff’s intoxication his perceptions of the indications of the approach of the motor vehicle, particularly the sound of it, would have been diminished, and his reaction time would have been increased. In those circumstances, it is I think quite likely that had he not been intoxicated he would have noticed the approach of the vehicle sooner, which would have given him more time to get out of the way.
In these circumstances, had the matter been litigated on the basis of common law contributory negligence, I would have found there was contributory negligence on the part of the plaintiff, essentially in also failing to keep a proper lookout for the approach of a vehicle and failing to attempt to get out of the way when it appeared not to be slowing down or stopping to avoid him. That would give rise to an issue of apportionment.
It is well established that because of the capacity of a motor vehicle to cause injury to a pedestrian, and because it is reasonably foreseeable that pedestrians will cross roads from time to time, there is a greater responsibility on a motorist to take care to avoid colliding with pedestrians, particularly at places where the layout of the road suggests that pedestrians are likely to be going to cross, as was the case here. If there was contributory negligence because of the plaintiff’s intoxication, I would nevertheless apportion the bulk of the responsibility for the collision to the driver of the unidentified vehicle, and only 20% to the plaintiff.”
Due to the fact that contributory negligence at common law had not been pleaded by the Defendant, His Honour made no reduction for contributory negligence and the Claimant was awarded damages based on a 100% finding of liability against the Defendant assessed at $124,934.80.
Essentially, McGill DCJ has strictly interpreted s47(3)(a) of the CLA as distinguishing between circumstances where a person’s intoxication contributes to the breach of duty giving rise to the damages claim against circumstances where the intoxication itself gives rise to a separate breach of duty on the part of the intoxicated person.
In both cases, the intoxicated person could be found to have been guilty of contributory negligence at common law however it is only in the former example, where there is a causative link between the Plaintiff’s intoxication and the Defendant’s breach of duty that the s47 mandatory reduction for contributory negligence will apply.
The most potent practice point to take from this decision is that a Defendant should not simply rely on s47 when alleging contributory negligence due to intoxication, and to ensure that common law contributory negligence is raised both in the pleadings and in argument at trial.
A copy of the decision can be found here.