Luca v Zupanov [2013] WADC 40

In this case the Western Australian District Court had to consider issues of contributory negligence and intoxication in a motor vehicle accident. The Plaintiff and the Defendant had been drinking alcohol, however the Defendant displayed no obvious signs of intoxication.

Background obvious

On 13 June 2008 the Plaintiff went to the Defendant's house to drink alcohol and socialise. The Plaintiff arrived at the Defendant's house around 7:00pm and consumed between one to two glasses of wine before they went to the local pub at around 9:00pm where they danced, drank alcohol and further socialised until midnight.

The Defendant later drove to McDonald's with the Plaintiff in the front passenger seat. On the return journey the Defendant lost control of the car while exiting a roundabout and collided with a brick structure causing the Plaintiff neck injuries.

The Plaintiff's case

The Plaintiff claimed that her injuries were caused by the negligence of the Defendant on five grounds, the first of which alleged a failure of the driver to wear appropriate footwear whilst driving. The other four grounds of negligence alleged a failure to properly control the car and travelling at excessive speed.

The Defendant's case

The Defendant claimed that the Plaintiff contributed to her injuries because the Plaintiff:

  1. knew, or ought to have known, that the Defendant was intoxicated to the extent that she was unable to maintain proper management or control of the motor vehicle; and/or
  2. knew, or ought to have known, that the Defendant was driving the motor vehicle after having consumed a sufficient amount of alcohol that would have affected her ability to drive the motor vehicle; and
  3. failed to wear a seatbelt.

Quantum and liability, to the extent the Plaintiff contributed to her injuries, were in issue at trial.

Contributory negligence - failure to wear a seatbelt

The Defendant maintained the allegation that the Plaintiff failed to wear a seatbelt until closing submissions, when it was abandoned.

While His Honour considered the decision by the Defendant to abandon this allegation was 'entirely justified' he was critical of the fact that this allegation was pleaded in the first place and maintained to trial without any supporting evidence - the Plaintiff had consistently reported that she was wearing her seatbelt at the time of the accident and it was not directly put to her in cross-examination that she was not wearing a seatbelt at the time of the accident.

Contributory negligence - intoxication

The critical issue to be determined was whether the Plaintiff was intoxicated under section 5L(4) Civil Liability Act 2002 (WA) ("the WA Act") and whether a reasonable person in the position of the Plaintiff would have foreseen that accepting a ride with the Defendant exposed her to a risk of injury by reason of the Defendant's intoxication.

Section 5L of the WA Act creates a presumption that a Plaintiff is contributory negligent when it is established that they were intoxicated at the time of the act that caused the harm. This is similar to the position in Queensland.

The Plaintiff's evidence was that she had between one to two glasses of wine at the Defendant's house before going to the pub where she had 'a few drinks'. The Plaintiff denied that she was drunk and also denied that the Defendant was drunk.

Both the Plaintiff and the Defendant walked home from the pub without any apparent difficulty and, upon reaching the Defendant's house, the Defendant peeled, sliced and fried some potatoes without any apparent difficulty.

The Defendant called two witnesses who were drinking and socialising with the Plaintiff and Defendant on the night of the accident.

The first witness gave evidence that all of the women were drunk at the pub despite earlier testifying that one of the women was not actually drinking alcohol. This witness testified that they drank champagne and possibly spirits and shooters as 'that's what we would drink'.

His Honour placed little weight on this witness' evidence as her evidence reflected assumptions as to what she would have done and behaved at that time as opposed to what may have actually occurred. Further, His Honour noted that on this witness' account she herself was also drunk.

The second witness, who was sober on the night, testified that vodka, bacardi, wine and champagne were consumed at the Defendant's house prior to the pub. The second witness testified the Defendant was 'definitely drunk' at the pub and denied the suggestion that neither the Plaintiff nor the Defendant exhibited signs of being intoxicated.

Despite the second witness' sobriety, His Honour placed little weight on her evidence as he doubted that her recollection of events extended to the behaviour of the Plaintiff and the Defendant on this particular night as opposed to any other night she enjoyed in their company.

While the Defendant testified that she did not exhibit any obvious signs of intoxication at any time of the night she conceded that she was drunk when cross-examined as to her blood alcohol reading, which was in the order of 0.122%.

His Honour noted several difficulties in inferring that that the accident was caused by the Defendant's intoxication.

Firstly, the evidence of both the Plaintiff and Defendant was that the Defendant was not obviously affected by alcohol. Secondly, the Defendant's driving up until the accident did not suggest an impaired ability to drive. Thirdly, there were a number of other possible factors that could have contributed to the accident such as the Defendant's footwear (thongs), the Defendant's lack of familiarity with the road or the Plaintiff's lack of familiarity with the motor vehicle.

His Honour concluded that the immediate cause of the accident was that the Defendant's foot slipped from the brake pedal due to her wearing thongs and was not caused or contributed to by the Defendant's intoxication.


As to the Plaintiff's duty to keep a safe and proper lookout for her own safety, His Honour opined that:

"... reasonable care required that before she accepted a ride with the defendant - to or from the fast food restaurant - it was necessary to make close observation of the defendant to determine her fitness to drive, and to decline a ride if any symptoms of intoxication, even relatively slight ones, were observed."

Ultimately, His Honour found in favour of the Plaintiff and was not satisfied that she contributed to her injuries:

"Although the plaintiff knew that the defendant had consumed alcohol in the course of the prior evening, from the time that the pub closed the plaintiff had had the opportunity to closely observe the behaviour of the defendant on the walk home, at the defendant's home, while cooking, and while driving to the restaurant and waiting in line. I am satisfied that because she was aware of the alcohol consumption the plaintiff had turned her mind to the possible effect of alcohol on the defendant's ability to safely drive a motor vehicle. Given the plaintiff's observations in that respect, given the absence of any signs of intoxication, I am not satisfied that she acted unreasonably for her own safety in accepting a ride with the defendant and in particular in riding with the defendant back from the restaurant."

The Plaintiff's injuries

The Plaintiff fractured both pedicles of the C2 vertebra and was admitted to hospital for approximately two weeks. Following discharge the Plaintiff was required to wear a brace on a daily basis for three months during which time her mother provided a significant amount of care.


As to general damages, the Plaintiff was awarded $91,000.00 to reflect her pain, suffering and loss of amenities of life.

Prior to the accident the Plaintiff was employed by Bankwest in financial services earning approximately $30,000.00 net per annum. Following the accident, the Plaintiff obtained employment at a flooring business on a part time basis. At the time of trial, the Plaintiff was working five hours a day, five days a week at a rate of $35.00 per hour - her capacity to work was restricted due to ongoing headaches. His Honour awarded $127,296.00 for past economic loss on the basis that, but for her injuries, the Plaintiff would have remained in her employment with Bankwest - a more lucrative role.

As to future economic loss, His Honour awarded $50,000.00 on a global basis as he considered it likely she would experience further improvement in her symptoms and return to full time work within two years.

His Honour allowed $24,629.50 for gratuitous care provided to the Plaintiff for the period she was required to wear a brace and $53,973.88 for special damages.


  • Though this case was heard in the Western Australia District Court, it provides an insight as to what evidence may be helpful in defending a motor vehicle accident claim on the basis of contributory negligence in Queensland.
  • As noted above, section 5L of the WA Act presumes contributory negligence where a Plaintiff is intoxicated at the time of the breach of duty. This presumption is only rebuttable if the Plaintiff can establish that their intoxication 'did not contribute in any way to the cause of the harm'.
  • Section 47 of the Civil Liability Act 2003 (Qld) ("the QLD Act") also presumes contributory negligence if the Plaintiff is intoxicated at the time of the breach of duty. Similarly, this presumption is rebuttable if the Plaintiff can establish that either their intoxication 'did not contribute to the breach of duty' or was not self-induced.
  • Under the QLD Act the Plaintiff has to prove that their intoxication did not contribute to the breach of duty whereas under the WA act the Plaintiff has to prove that their intoxication did not contribute 'in any way to the cause' of their injuries.

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