Solomons v Pallier

1. [1]

   MACFARLAN: Subject to the following, I agree with the judgment of Meagher JA.

2. [2]

   The basis on which I would find that the respondent was guilty of contributory negligence is the second of the particulars of negligence Meagher JA quotes in [50] below, namely:

3. [3]

   The respondent knew that the appellant had consumed at least some alcohol at the party because, on the appellant’s evidence, he witnessed him do so (Judgment [16]) and he knew from what the appellant said to his passengers before the journey commenced that he was a P plater, and therefore not permitted to drive (see [20] below). A reasonable person in the respondent’s position would have known or inferred that the reason for this prohibition was that the relative inexperience of P plate drivers, as compared to that of drivers with unqualified licences, gave rise to a risk that the presence of any amount of alcohol in their blood might significantly impair their ability to drive carefully, competently and responsibly.

4. [4]

   The respondent therefore knew or ought to have known that he was assuming a not insignificant risk of injury by agreeing to travel in the vehicle driven by the appellant. This was so even though, for the reasons following, it was not established that the respondent had any actual knowledge that the appellant’s faculties were impaired or that his blood alcohol level exceeded the 0.05% level applicable to drivers with unqualified licences.

5. [5]

   The other quoted particular of contributory negligence was:

6. [6]

   The primary judge held that a reasonable person in the respondent’s position “ought to have known that the [appellant] was intoxicated to a degree whereby his driving would be impaired” (Judgment [36]). Later, his Honour described his finding as one that the respondent “knew or ought to have known that the [appellant’s] driving may be impaired” and said that the respondent’s “knowledge of the extent of that impairment would have been slight” (Judgment [39], emphasis added).

7. [7]

   As these findings were not challenged on appeal, they must be accepted. However, in light of the paucity of evidence to support them, emphasis must be on the fact that his Honour found the respondent’s knowledge to be only “slight”. The respondent knew that the appellant had consumed some alcohol but there was no evidence that he knew (assuming it to be the fact) that the appellant had drunk to excess. The appellant asserted to his passengers that this was not the case and his statement to them about taking “the back roads to avoid the police” was consistent with the reason for him doing so being that which he gave to them, namely, that he was a P plater who was not permitted to have any amount of alcohol in his blood whilst driving.

8. [8]

   The respondent was, by reason of his injuries, unable to give evidence and neither the expert nor any other evidence suggested that there was or would have been anything in the appellant’s appearance or demeanour prior to the commencement of the journey that would necessarily have indicated to the respondent that the appellant had not only drunk some alcohol but that he had done so to the extent that his faculties were impaired or that he exceeded the limit of 0.05% applicable to the holders of unqualified licences. The primary judge noted in respect to the former that the “expert evidence suggests that there was unlikely to be any ‘signs of frank intoxication’, for example, slurred speech or impaired balance” (Judgment [29] (10)).

9. [9]

   In light of these circumstances, I would not attribute any contributory negligence to the respondent on the basis of the particular of contributory negligence quoted in [5] above. Nevertheless, for the reasons I have given in relation to the first-quoted particular of negligence, when taken in the context of the factual matters to which Meagher JA refers, I would conclude that a deduction of 10% should be made for the respondent’s contributory negligence.

10. [10]

    MEAGHER JA: On 4 October 2009 the respondent, then just 16 years of age, suffered serious injuries when the Jeep Wrangler 4X4 soft-top vehicle in which he was travelling partly left the roadway. Its nearside wheels travelled along the grass verge and struck a concrete culvert causing the vehicle to rotate and roll. The respondent was one of three rear seat passengers. The passenger in the front seat was killed. The respondent was thrown from the vehicle as it rolled. The injuries he sustained included severe brain trauma. The vehicle was being driven by the appellant, then aged 22, and the holder of a provisional licence. The appellant had offered the respondent and two of the other passengers a lift home from a party at his house at Calala near Tamworth. At the time of the accident he had been driving for about half an hour and his blood alcohol concentration was estimated to be about 0.07 grams of alcohol per 100 millilitres of blood.

11. [11]

    The respondent brought proceedings against the appellant for negligence. The only question before the primary judge was whether the respondent’s damages should be reduced for contributory negligence because he had voluntarily accepted a ride from a P plate driver who he knew had been drinking: Pallier v Solomons (No 2) [2014] NSWSC 1524. The primary judge was not satisfied that there was contributory negligence and, if there was, he considered it was not just and equitable to make any reduction in respect of it. This appeal challenges each of those conclusions. The primary judge’s finding that there was no contributory negligence was based on a formulation of the risk of harm, against which it was said that the respondent should have taken precautions, that was not the focus of the argument before him. This observation makes it necessary to explain the arguments made by the parties and how they were dealt with by the primary judge.

The reasoning of the primary judge

1. [12]

   At trial the respondent answered the allegation of contributory negligence at a number of levels. First, it was said that the respondent was not aware that the appellant’s driving capacity was impaired by reason of his intoxication and that the evidence did not establish that a reasonable person in the respondent’s position ought to have been so aware. The primary judge rejected that argument holding that the respondent knew or ought to have known that the appellant’s driving was impaired by his being intoxicated although the respondent’s “knowledge of the extent of that impairment would have been slight”: [36], [39]. This finding is not challenged by either party on appeal.

2. [13]

   Secondly, addressing whether a reasonable person in the respondent’s position would have accepted the appellant’s offer of a lift knowing that his driving capacity may be impaired, it was submitted that the respondent acted reasonably in doing so. He was only a month past his 16th birthday and an invited guest at a party late in the evening when a threat of violence arose. The appellant assured the three boys to whom he offered a lift that he was in a fit state to drive. The primary judge did not address this submission. Instead he addressed the different question of whether the respondent had been contributorily negligent in not refusing the offer of a lift so as to avoid the risk that the appellant “who was mildly intoxicated or impaired would deliberately drive off the roadway”: [91]. Although that formulation reflected the manner in which the accident was found to have happened (at [61]-[62]) the primary judge noted that this more specific risk of harm “was not [the] subject of argument”: [85]. The primary judge concluded that risk was not foreseeable or significant (he did not in terms find that it was insignificant) and concluded that, faced with that risk, it was “not unreasonable for the [respondent] not to have taken the precaution of not riding with the [appellant]”: [91], [93].

3. [14]

   Thirdly, the respondent submitted that taking account of the appellant’s culpability in causing the accident, there should be no apportionment for contributory negligence. That culpable conduct was said to be that the appellant had deliberately driven the nearside wheels of the vehicle onto the grass verge in order to “take out a guidepost” and “scare the boys in the back” (tcpt 25/08/14, p 25). That submission was based on a statement said to have been made by the appellant at the scene of the accident which was overheard and recorded by a police officer, Senior Constable Hooley. The primary judge found that the appellant did have a conversation in the terms recorded in the Constable’s notebook. He also found that what was said accurately described what had happened and the actions that had caused the accident: [58], [62].

4. [15]

   Against the possibility that his finding as to the absence of contributory negligence was wrong, the primary judge addressed and accepted the respondent’s submission that in the circumstances it was just and equitable that there be no reduction in the damages for contributory negligence: [96]. He did not expressly address whether, assuming the risk of harm was accurately captured in the more general proposition of being a passenger in a vehicle driven by an intoxicated driver, the respondent was contributorily negligent in accepting the appellant’s offer of a lift. Nor did the primary judge address whether the respondent’s lack of care in that regard contributed to the harm he suffered.

The issues in the appeal

1. [16]

   The grounds of appeal specified in the notice of appeal raise the following issues:

2. [17]

   The second of these issues raises a number of sub-issues, some of which were not the subject of much consideration in the parties’ arguments on the appeal. They are whether the primary judge erred in formulating the risk of harm too narrowly for the purpose of considering whether the respondent had been contributorily negligent; whether the risk of harm which the primary judge focused on (that the appellant would deliberately drive off the roadway) was an aspect of the broader risk faced by a passenger accepting a lift from an intoxicated driver; assuming that broader formulation of the relevant risk of harm, whether the respondent was contributorily negligent; and whether any failure of the respondent to take care for his own safety in respect of that risk contributed to the occurrence of the injuries he sustained.

3. [18]

   Before addressing these issues, it is convenient to set out the uncontroversial facts and competing versions of events.

The circumstances of the accident

1. [19]

   On Sunday 4 October 2009 the appellant and his four housemates had arranged a party to coincide with the National Rugby League grand final. The respondent was there as a guest of the appellant’s younger sister. At about 10pm an altercation developed over damage caused to the screen of a laptop computer owned by one of the female housemates. Her boyfriend became aggressive and in the appellant’s words wanted “someone to own up for it and wanted to fight whoever it was” (tcpt 25/08/14, p 22). When that did not happen, the boyfriend announced “[a]nyone who’s not meant to be staying here, get the F out of my house”. The appellant offered a lift to the respondent and two other boys. One was a similar age to the respondent and also a friend of the appellant’s sister. The other was two years older. Mr Bailey, a friend of the appellant, also went along for the ride and sat in the front passenger seat.

2. [20]

   The appellant had been drinking during the evening. Because he was a P plate driver and not permitted to drive after consuming any alcohol, the appellant took the longer “back” route via Kootingal to his ultimate destination, Oxley Vale, which is to the north-east of Tamworth. Before the journey commenced he said to his passengers (tcpt 25/08/14, p 23):

3. [21]

   At Kootingal, the vehicle stopped for a few minutes to allow the occupants to relieve themselves. Up to that time, there do not appear to have been any untoward incidents in relation to the appellant’s driving of the vehicle. One of the rear seat passengers, Mr Clow, described the appellant as “just concentrating on staying on the road”. Nevertheless the appellant recalled that someone in the back seat asked him “several times” during the course of the journey whether he was okay to drive. He insisted that nothing had happened to “prompt the questions”. At the time of the accident, the appellant had been driving for close to half an hour. Travelling in a westerly direction along Upper Moore Creek Road, just before its intersection with Sterling Road, the vehicle left the bitumen surface of the road. Photographs showed that the nearside tyres left the roadway and travelled along the grass verge roughly parallel with the roadway for a distance before the vehicle collided with the culvert, causing it to rotate and roll.

4. [22]

   One of the first police officers at the accident scene was Senior Constable Hooley who arrived at around 11.30pm. At some stage he was asked to stay with the appellant until he could be assessed by ambulance officers. The Constable did so. About five to ten minutes before the appellant was taken away by ambulance, Constable Hooley overheard him talking on his mobile phone and then had a short conversation with him. The Constable recorded in his police notebook what he recalled having heard and his exchange with the appellant. He did this five or ten minutes after the appellant had left the accident scene.

5. [23]

   The entry in Constable Hooley’s notebook was:

6. [24]

   In his evidence in chief, the appellant was asked to describe the events leading up to the accident (tcpt 25/08/14, p 25):

Did the primary judge err in finding that the appellant deliberately drove his vehicle partly off the road so as to hit a guidepost (grounds 7 and 8)?

1. [25]

   The primary judge accepted Senior Constable Hooley’s evidence and found that the appellant’s recorded admission was a “true reflection of what happened and what caused the accident”: [62]. The appellant challenges those findings. It was submitted that Constable Hooley had not accurately recalled or recorded the conversation he overheard. In argument the parties referred to the following evidence of Constable Hooley and the appellant.

2. [26]

   Three days after the accident Constable Hooley signed a statement which recorded that he had a conversation and exchange with the appellant in the terms shown in his notebook. He gave similar evidence at the hearing (tcpt 26/08/15, p 64). In cross examination he accepted that when he was standing with the appellant before he was assessed by the ambulance officers he could smell alcohol on his breath and observed that the appellant was “very upset” and very “sort of agitated”. He was then cross examined about an entry in the police “COPS” record which included the following description of the appellant, presumably whilst he was still at the scene of the accident:

3. [27]

   That record stated that it had been created and updated by Senior Constable Clout of “Oxley Crash Inves”. Constable Hooley agreed in cross examination that Senior Constable Clout could not have made these entries from his own observations of the appellant at the crash scene because he arrived after the appellant had been taken to hospital. He denied that he had made the observations and communicated them to Senior Constable Clout. As to what was recorded, Constable Hooley accepted that the appellant seemed anxious and agitated but denied that it was his opinion at the accident scene that the appellant was moderately affected by alcohol (tcpt 26/08/14, p 72).

4. [28]

   It was suggested to Constable Hooley that the “normal protocol”, when taking a statement from a person involved in an accident, was to record it in question and answer form and to invite the person to read what had been written and sign it. He agreed but explained (tcpt 26/08/14, pp 75-77):

5. [29]

   It was also suggested to Constable Hooley that he may have been mistaken when recalling and recording what he had overheard:

6. [30]

   This last proposition as to what the appellant could have said was not the subject of any evidence to that effect from the appellant and was not consistent with Constable Hooley’s evidence.

7. [31]

   In cross examination the appellant agreed that, on the section of road where the accident occurred, there were flexible plastic guidepost markers which could be hit and would not damage the vehicle (tcpt 25/08/14, p 38). He had no recollection of speaking to Constable Hooley or any other policeman at the accident scene (tcpt 25/08/14, p 40). He did not remember saying any of what Constable Hooley had recorded in his note. He described himself as being “just hysteric” and “an absolute utter mess” (tcpt 25/08/14, p 27). He maintained that he had only “suggested deliberately driving off the road” and agreed that during the journey from Calala he had spoken to Mr Bailey many times (tcpt 25/08/14, p 42).

8. [32]

   The appellant was subsequently charged and pleaded guilty to the offences of causing death by dangerous driving and causing grievous bodily harm by dangerous driving. In his oral evidence he referred to an amendment made to a draft fact sheet prepared by the Crown in advance of the sentencing proceeding for those offences. That draft included Constable Hooley’s version of what he had overheard (see [23] above). The appellant took issue with the statements “I was just trying to scare them. I just went to take out a guidepost” and they were removed from the final form of the fact sheet which was tendered in that proceeding. Significantly, the statement “I didn’t know the ditch was there” remained in the final version of the fact sheet as something that the appellant was heard to say.

9. [33]

   The primary judge regarded it as significant that “a number of details in the notebook and in the evidence of Mr Hooley [were] clearly and objectively correct.” The primary judge continued at [50]:

10. [34]

    The primary judge considered that the accuracy of those details and the fact that the note was made a very short time after the conversation supported the conclusion that it represented a reliable, although not necessarily verbatim, account of what had been said. This also supported his Honour’s conclusion that, notwithstanding that the appellant was very upset and agitated, he remained able to answer correctly questions relating to what had happened.

11. [35]

    The primary judge described Constable Hooley as an “impressive witness even though he accepted that he did not write down the conversation he had with the defendant word for word” or ask the defendant to adopt the conversation in the notebook: [56]. The possibility that there had been a mistake in the Constable’s recalling and recording of what the appellant had said was discounted. The appellant had no recollection of any conversation with Constable Hooley and the contrary version that was said to have been mistakenly recorded was not an overheard conversation.

12. [36]

    His Honour also considered the inclusion in the notes of the comment “I didn’t know the ditch was there” to be a “most unusual detail to record if it was not said”. The “only sensible explanation” for the appellant having made such a statement was to explain his action in deliberately driving onto the side of the roadway: [57].

13. [37]

    Finally, the primary judge considered that it would strain “credulity” to find that, at the very moment the appellant asserted having a conversation with his passenger about driving off the roadway, “he did just happen to leave the roadway”: [59]. Up to that point in time there was no suggestion that the appellant had strayed off the roadway, despite his having driven for half an hour and spoken without incident to Mr Bailey on many occasions.

14. [38]

    The appellant submits that there is a “substantial body of evidence casting doubt on whether the alleged admission was recalled or recorded accurately”. He also submits that there was evidence that was inconsistent with a finding that his conduct in driving on to the grass verge was deliberate. The following matters were relied on in support of these submissions.

15. [39]

    First, it was pointed out that Constable Hooley’s notes were not made until 10 to 20 minutes after the overheard conversation and in circumstances said to be contrary to “normal protocol” because the appellant was not asked to confirm what had been noted. It was also suggested that Constable Hooley’s observations of the appellant given in oral evidence were inconsistent with the observations in the COPS record. On that basis it was said that Constable Hooley’s recollection as to what he heard and saw may not have been accurate. Secondly, it was submitted that the terms of the notes could be explained as a mistaken overhearing or recalling and recording of the appellant’s description to someone on the telephone of the conversation he had with Mr Bailey immediately before the accident. Thirdly, it was noted that there was no physical evidence at the accident scene which necessarily supported the conclusion that the appellant’s conduct in driving partly off the road was deliberate. Next, it was said that the appellant’s version of events provided an equally plausible explanation for how the accident happened. Finally, it was submitted that, because of the appellant’s state of agitation immediately after the accident, anything said or heard to be said by him at that time was unlikely to be reliable and for that reason was to be discounted.

16. [40]

    In making these submissions the appellant did not suggest that the primary judge had not approached the question of fact finding in accordance with the common law principles enunciated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, more correctly, s 140 of the Evidence Act 1995 (NSW). That section provides that the factors that must be taken into account by a court in civil proceedings when addressing whether it is satisfied that a case has been proved on the balance of probabilities include “the gravity of the matters alleged”. That section, as this Court observed in Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [205], accords with the principles stated in Briginshaw as applied by the primary judge at [71].

17. [41]

    The primary judge’s conclusion was based on the admission made by the appellant and overheard by Constable Hooley. That conclusion involved two findings. They were that the appellant had made a statement and had a conversation with Constable Hooley in the terms recorded; and that the appellant’s statement as made was reliable. The first of these findings was based, at least in part, on an assessment of the credibility and reliability of Constable Hooley. Ordinarily such a finding should not be disturbed unless shown to be glaringly improbable, or contrary to compelling inferences or inconsistent with incontrovertible facts or uncontested evidence. That principle is not controversial: Fox v Percy [2003] HCA 22; 214 CLR 118. None of the matters to which the appellant refers answer any of these descriptions.

18. [42]

    It is true that the Constable’s notes were not written until 10 to 20 minutes after the conversation was overheard and that the appellant was not asked to confirm what had been recorded. However what was recalled and recorded was correct in a number of respects and Constable Hooley’s explanation for why he believed the normal protocol did not apply was plausible and not challenged. He was not questioning the appellant in relation to the accident, merely making a note of what he had overheard. In addition the circumstances did not easily lend themselves to obtaining the appellant’s agreement to the correctness of what had been recorded. There had been a terrible accident with one fatality and another serious injury. The appellant was also injured and waiting to be treated.

19. [43]

    There was no other reason to doubt the reliability of the Constable’s recollection and observations. The fact that the latter differed to some extent from those in the COPS report was explained. He was not the author of that report and the evidence did not contradict or make improbable his denial that he was the source of the information in it.

20. [44]

    The finding that Constable Hooley’s note was not the result of a mistaken overhearing or recollection of a conversation is not inconsistent with the evidence or glaringly improbable. The conversation that was suggested in cross-examination to have led to the mistaken note was one with Constable Hooley rather than one overheard by him. Constable Hooley’s evidence that it was an overheard conversation was consistent with the final version of the fact sheet from the criminal proceedings which describes something the appellant was heard to say. That version included the words “I didn’t know the ditch was there”. Those words were not part of the appellant’s version of what he said. Nor were they part of either of the conversations suggested to Constable Hooley in cross-examination. Their having been said and recorded cannot be explained away as the result of mishearing or mistaken recollection and is only consistent with the appellant attempting to justify his action in driving onto the side of the roadway.

21. [45]

    The remaining matters relied upon are equivocal as to whether Constable Hooley accurately recorded what the appellant said. The physical evidence at the accident scene and the occurrence of the accident were equally consistent with the appellant having intentionally driven onto the side of the road. Whilst the appellant’s version provided an explanation for how the accident happened, that version was improbable. At the time of the accident he had been driving for half an hour and no similar incident had occurred despite his many conversations with Mr Bailey. There is also the fortuitous coincidence that at the time he suggested to Mr Bailey that he would “take out a guide post” that in fact occurred, albeit inadvertently. The primary judge was entitled to be sceptical about the likelihood of that occurring.

22. [46]

    The final matter, that the appellant was “hysteric”, was relied on as calling into question the reliability of any admission made. The difficulty for this argument has already been mentioned. The information provided in answer to the Constable’s specific questions was objectively correct. The appellant had also conceded, by the final version of the facts sheet, that he made a statement that was unlikely to make any sense unless he had intentionally driven off the road.

23. [47]

    The primary judge did not err in finding that the appellant intentionally drove the vehicle partly off the roadway in order to hit a guidepost or posts on the side of the road.

Whether the respondent was contributorily negligent in failing to take precautions against the risk of the harm he suffered (grounds 9, 10, 11, 12, 13 and 14)?

1. [48]

   Section 138(1) of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) applied to the motor accident in which the respondent was injured: ss 3A(1), 3B(1)(a). It provides that the “common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident”, except as provided. The enacted law relevantly includes s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) and ss 5R and 5S of the Civil Liability Act 2002 (NSW) which apply by s 3B(2)(a) of that Act. Section 5R provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against a risk of harm which materialised and resulted in injury.

2. [49]

   Section 5 of the Civil Liability Act defines “harm” to include personal injury. A person is not negligent in failing to take precautions against a risk of harm unless that risk was foreseeable, not insignificant and, in the circumstances, not one against which a reasonable person in the person’s position would have taken precautions (s 5B(1)).

3. [50]

   The particulars of contributory negligence alleged included:

4. [51]

   The primary judge made the following findings (at [72]) which are not challenged on appeal:

5. [52]

   Assuming, as discussed above, that the appellant’s actions in causing the accident were deliberate, the findings at [72] which the appellant challenges include:

6. [53]

   In relation to (vi), the appellant does not challenge the finding that his actions may have been influenced by the consumption of alcohol.

7. [54]

   There was expert evidence as to the way in which a driver’s decision-making and conduct may be impaired by alcohol.

8. [55]

   Professor Christie, qualified on behalf of the appellant, and Dr Robertson, called in the respondent’s case, gave evidence as to the appellant’s likely blood alcohol concentration at the time of the accident and how that might have impacted on his driving ability. They agreed that his most likely blood alcohol concentration at that time was about 0.07%.

9. [56]

   The evidence of Professor Christie as to the resulting impairment was extracted by the primary judge at [90]:

10. [57]

    Dr Robertson expressed similar views as to the effect of alcohol concentrations of about 0.07%:

11. [58]

    The primary judge accepted that there was a foreseeable risk of injury to the respondent as a passenger in a vehicle whose driver was mildly to moderately intoxicated: [83]. He did not however then address whether a reasonable person in the respondent’s position would for that reason have taken the precaution of not accepting the appellant’s offer of a lift.

12. [59]

    Instead the primary judge’s analysis proceeded as follows:

13. [60]

    The findings referred to are those recorded at [91], [92] and [93]. The “effects described” in [91] are those described in the extracted evidence of Professor Christie (see [56] above):

14. [61]

    Initially, the appellant did not challenge the primary judge’s identification of the relevant risk on the basis that it was too narrow. He did however challenge the primary judge’s findings at [91] that the consequences of being mildly intoxicated to which Professor Christie had referred did not include the possibility that a person might deliberately drive off the road; and that such a possibility was not foreseeable and not a significant risk. In oral argument it was also submitted that the risk of injury as correctly identified was travelling in a vehicle driven by an intoxicated driver. More precisely, that risk was of injury due to a collision or incident in some way caused or contributed to by that driver’s impaired capacity, irrespective of whether the act directly resulting in the motor accident was careless, inadvertent, irresponsible or deliberate.

15. [62]

    The respondent submitted that the primary judge was correct to conclude that the relevant risk was that of the appellant deliberately driving off the roadway. That risk was neither foreseeable nor significant and was quite different from the risk that he might do so carelessly.

16. [63]

    The question which s 5R(1) poses is “whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm”. The harm which the respondent suffered was personal injury as a result of a motor accident. The general principles to be applied in determining whether he was contributorily negligent are those in s 5B. That section, as I observed in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22], assumes an allegation of breach of duty which is or can be formulated in terms of a failure to take precautions against a risk of harm:

17. [64]

    This Court took a similar approach in Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235 at [106]. As the Court there observed, in a case where the plaintiff was injured whilst boarding a chairlift there were several risks attending the plaintiff’s activity and:

18. [65]

    The same observation applies to an allegation of contributory negligence which is assessed with reference to a risk of harm to the plaintiff against which it is said he or she should have taken precautions: Gordon v Truong; Truong v Gordon [2014] NSWCA 97; 66 MVR 241 at [15]. This may be illustrated by considering the precautions that it was alleged the respondent failed to take. The first, which was not pressed at the trial, was failing to wear a seatbelt. The risk of injury to which that precaution was directed was that of being thrown out of or being unsecured inside a motor vehicle in an accident or incident. The precaution that remained directly relevant was refusing a lift in a motor vehicle driven by someone who was known to be mildly intoxicated and a P plate driver subject to zero alcohol tolerance. That precaution is directed to a different risk of injury, namely that resulting from the driver’s impaired driving capacity due to intoxication.

19. [66]

    In Joslyn v Berryman [2003] HCA 34; 214 CLR 552 the injured plaintiff (Mr Berryman) was alleged to have been contributorily negligent in allowing the severely intoxicated defendant to take over the driving of his car. At [38] McHugh J formulated the relevant question as being:

20. [67]

    The primary judge accepted that there was a risk of injury to the respondent in accepting a lift from the appellant because he was “mildly to moderately impaired by alcohol”: [72], [83]. He also held that a reasonable person in the respondent’s position would have known that the appellant’s driving capacity was impaired to some degree by reason of his intoxication: [36], [39], [72]. However, he did not address the questions posed by s 5B(1) in relation to that risk. His reason for not doing so was not that the appellant’s intoxication was causally irrelevant to the happening of the accident. That would have been inconsistent with his finding at [72] that the appellant’s driving may have been influenced by his consumption of alcohol. As explained in [58]-[59] above, his Honour considered those questions with reference to the risk that a person who was mildly intoxicated would deliberately drive off the roadway.

21. [68]

    The question whether the respondent was contributorily negligent in failing to reject the appellant’s offer of a lift, like the question whether there has been a breach of duty (as to which see Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [127]), has to be addressed prospectively. Here the risk which presented itself was the risk of injury as a result of travelling in a vehicle with a mildly intoxicated driver. From the perspective of a reasonable person in the respondent’s position, that risk fell to be considered as a whole. It could not be dissected into the risk of the appellant driving carelessly and the risk of his doing so deliberately and dangerously, if in each case the risk was a result of his intoxication. Also, as Macfarlan JA observed in Shaw v Thomas [2010] NSWCA 169 at [43], neither under the general law nor under s 5B is it necessary to formulate the risk of harm, for the purpose of inquiring whether it was reasonably foreseeable and not insignificant, by reference to the precise manner in which the injuries were sustained.

22. [69]

    In formulating the risk of harm more narrowly the primary judge drew a distinction between the risk of injury as a result of conduct characterised as inadvertent or careless and the risk of injury as a result of conduct characterised as deliberate. He did so on the basis that conduct of the former kind was identified by Professor Christie as a possible consequence of mild intoxication, whereas conduct characterised as deliberate was not: [85], [91]. In doing so I respectfully consider that his Honour erred in two respects.

23. [70]

    First, the appellant’s conduct involved an element of carelessness and lack of judgment. His Honour found that the appellant intentionally drove the nearside wheels of the vehicle off the roadway in order to knock over a guidepost or posts. As the primary judge accepted, he did so believing there was no real risk because he “didn’t know the ditch was there”. Whilst the appellant’s conduct was in one sense “deliberate”, the outcome plainly was not and the decision to drive as he did equally involved a serious error of judgement and, in the language of Professor Christie, “impaired decision making”. Secondly, the evidence of Dr Robertson (see [57] above) was that mild intoxication could result in conduct involving reduced inhibition and a lack of care and safety. The appellant’s conduct in driving as he did to “scare the boys in the back” answered that description.

24. [71]

    The primary judge’s conclusion that the respondent was not contributorily negligent cannot stand. It did not address the relevant risk of harm and was based on a legally irrelevant characterisation of the appellant’s conduct as deliberate.

25. [72]

    This conclusion makes it necessary to consider whether the respondent was guilty of causally relevant contributory negligence. The primary judge found that the risk of an accident because the appellant was mildly intoxicated and his driving capacity impaired was foreseeable: [83]. The probability of that risk coming to pass was not insignificant (s 5B(1)(b)). The evidence of the pharmacologists was that a blood alcohol level of 0.07% impaired decision making, affected judgment and led to reduced care and caution. Professor Christie’s evidence was that a blood alcohol level of 0.07% increases the risk of a motor accident to approximately 1.46 times that generally experienced.

26. [73]

    There remains the question whether a reasonable person in the respondent’s position would have declined the appellant’s offer of a ride. The respondent had just turned 16 and was eligible to apply for a learner’s licence. He was or should have been aware that the appellant’s driving capacity was impaired and that, as a P plate driver, the appellant was not allowed to drink and drive.

27. [74]

    I have referred in [12] and [51] above to the primary judge’s finding that the respondent knew or ought to have known that the appellant’s driving was “impaired to some degree by [his] intoxication”. His Honour made no finding as to the respondent’s actual or constructive knowledge of the degree or extent of that impairment, other than to observe that it would have been “slight”. Macfarlan JA expresses reservations as to the respondent’s knowledge in this respect (see [7] above). While it may be accepted that the intoxication of which the respondent had knowledge was neither frank nor obviously excessive, the primary judge’s unchallenged finding was that the respondent knew or ought to have known that the appellant’s driving capacity was impaired because of his intoxication.

28. [75]

    By travelling in the car the respondent was running the risk of serious injury or worse due to the driver’s impaired capacity (s 5B(2)(b)). The probability of that occurring was unknown but not negligible (s 5B(2)(a)). It was not reduced by the appellant’s assurances that he was okay to drive. On the contrary, the questioning of the appellant in that regard by his passengers should have enlivened the respondent’s awareness of the problem. The reality was that the appellant’s driving capacity and judgment were impaired to some extent and that he should not have been driving. Although there had been a threat of violence leading up to the departure from the party, the evidence did not suggest and the primary judge did not find that the respondent had no choice but to accept the appellant’s offer of a ride.

29. [76]

    In the circumstances, the hypothetical ordinary, reasonable 16 year old, recognising that there was a real risk of serious injury, would not have travelled in the car. From the respondent’s perspective, the taking of that precaution would likely have involved inconvenience and delay. However, it was not necessary that he accept the appellant’s offer and in not rejecting it he failed to take reasonable care for his own safety.

30. [77]

    There is contributory negligence under s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 if “a person (the claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person”. This reflects the common law position that the claimant’s lack of care must contribute to the occurrence of the injury or the nature or extent of it: see cases cited in Davis v Swift [2014] NSWCA 458; 69 MVR 375 at [24].

31. [78]

    Here that question of causation arises for the purpose of attributing responsibility to the respondent for his failure to exercise reasonable care for his own safety. See Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 29-30 (Lord Hoffmann). The existence of a causal relationship between the respondent’s injuries and failure to take care is not demonstrated by asking whether, but for his travelling in the vehicle, those injuries would not have been suffered. That question would not sufficiently focus on the consequence of his failure to exercise care which was his travelling in a vehicle driven by a mildly intoxicated driver. Once that consequence is recognised, the relevant question becomes whether, but for the appellant driver’s having been mildly intoxicated, the accident would not have occurred and the respondent’s injuries would not have been sustained.

32. [79]

    The primary judge accepted that the appellant’s actions “may have been influenced by [his] consumption of alcohol”: [72]. In my view, it should be concluded that the fact that the appellant was mildly intoxicated did causally contribute to his reckless conduct in intentionally driving off the roadway. The evidence of Professor Christie and Dr Robertson was that a blood alcohol level of 0.07% would have resulted in a reduction in the driver’s care and caution, impaired decision making and (Dr Robertson only) a reduction in the driver’s inhibitions. The fact that the appellant’s conduct was intentional (in the sense referred to earlier) did not remove the causal significance of the respondent’s failure to take reasonable care for his own safety. That failure placed the respondent in a position of risk. That risk of injury arising from the appellant’s impaired driving capacity materialised and caused the accident. In the terms of s 9(1), both the respondent’s failure to take reasonable care for his safety and the appellant’s wrongful conduct causally contributed to the injuries suffered by the respondent.

Whether the primary judge erred in concluding that there should be no reduction of the respondent’s damages for contributory negligence (grounds 15 and 16)?

1. [80]

   If there is contributory negligence, s 138(3) of the MAC Act, by applying s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965, provides that the damages are to be reduced by “such percentage as the court thinks just and equitable in the circumstances of the case”. Notwithstanding the slightly different language in s 138(3) to that considered in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492, the determination of the percentage, if any, by which the damages recoverable should be reduced under s 138(3) involves a comparison “both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage”: Podrebersek at 494; Davis v Swift at [25]-[28].

2. [81]

   The primary judge concluded that it was just and equitable to reduce the respondent’s damages by 0%. His reasons for doing so were as follows:

3. [82]

   As Basten JA observed in Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219; 64 MVR 354 at [48], it is commonly said that an appellate court should be reluctant to interfere with a trial judge's finding as to contributory negligence because reasonable minds may differ as to where within a particular range the appropriate result is to be found. However, such a conclusion, which involves a process of weighing different considerations in arriving at an evaluative judgment, may be overturned for error if it is shown that the primary judge mistook the facts, applied the wrong test or that the apportionment arrived at was plainly unreasonable.

4. [83]

   The appellant challenges the primary judge’s conclusion on two bases. First, it is said that he erred in proceeding on the basis that the appellant had intentionally driven the vehicle off the roadway. This argument must be rejected in view of the conclusion that this finding was justified (see [42]-[47] above). Secondly, it is submitted that, even if the appellant’s conduct was deliberate, an apportionment of nil was contrary to “community and legal standards” and as such plainly unjust and unreasonable. The appellant suggests that an apportionment of 20% would reflect the respective shares of the parties’ responsibility for the damage.

5. [84]

   The respondent supports the primary judge’s conclusion. He emphasises the findings that he was just 16 years of age and placed in a difficult situation because of the aggressive behaviour of one of the housemates; that his actual or constructive knowledge could only have been that the appellant was mildly intoxicated; and that he was given assurances by the appellant that he was okay to drive.

6. [85]

   The exercise of apportionment directs attention to the culpability or degree of departure of each party from the appropriate standard of care and the relative importance of their respective careless acts in causing the damage suffered.

7. [86]

   By accepting the appellant’s offer of a ride the respondent failed to take reasonable care for his own safety. That carelessness exposed him to the risk of riding with an intoxicated driver and, for that reason, was causally related to what followed.

8. [87]

   Although the vehicle stopped at Kootingal for a few minutes, neither party relied on this as providing an opportunity for the respondent to have left the vehicle. Therefore the culpability of his action in accepting a lift is to be assessed by reference to his decision to do so at Calala. (This means that (vi) of the primary judge’s reasons (see [81] above) is not relevant to the assessment of the respondent’s culpability in this case: cf the position of Ms Campbell in Nominal Defendant v Green at [22], [39]).

9. [88]

   The following matters are relevant to an assessment of the respondent’s culpability. First, he was only 16 years of age, six years younger than the appellant and the youngest of the three passengers. Secondly, he was confronted with the decision whether to accept the appellant’s offer of a ride without much warning and in circumstances where it was otherwise going to be difficult for him to get home. However, it was not established on the evidence that it was “necessary” for him to accept that offer. Thirdly, the appellant told his passengers that he did not think he was over the 0.05% limit applicable to fully licensed drivers and that he was “fine” to drive. Fourthly, at its highest the respondent’s actual or constructive knowledge of the extent of the appellant’s impairment was or would have been that it was mild. Finally, from the respondent’s perspective, there was nothing in the evidence, either as to the appellant’s character or as to his conduct on the evening in question, which indicated that he was someone who might engage in reckless or irresponsible conduct when driving.

10. [89]

    It was not the appellant’s case that the respondent’s lack of care included travelling with an inexperienced or unlicensed driver (cf Williams v Government Insurance Office of New South Wales (1995) 21 MVR 148; Mackenzie v Nominal Defendant [2005] NSWCA 180; 43 MVR 315) or not wearing a seatbelt (cf Nominal Defendant v Lane [2004] NSWCA 405; Nominal Defendant v Green). Nor is this a case in which the injured party encouraged or invited an intoxicated person to drive or was in some way able to direct or control that person’s conduct in doing so (cf Williams v Government Insurance Office; Mackenzie v Nominal Defendant).

11. [90]

    The accident and the respondent’s injuries were the direct result of the appellant’s conduct which included his deliberate act in driving partly off the roadway. That act, as the primary judge held, was “completely irresponsible” and “conduct of a most egregious and reckless kind”: [97]. It showed total disregard for his own safety and that of the four passengers, to whom he owed a duty of care.

12. [91]

    In contrast, the respondent’s careless act in accepting the ride did not causally contribute to the happening of the accident in which he was injured. To adopt the language of Cooper J in Morton v Knight [1990] 2 Qd R 419 at 430 his negligence was “passive, and lay in placing himself in a position of danger within the car”. In such a case an assessment of the culpability and causative contribution of the passenger, for the purpose of apportioning legal responsibility, must take account of the extent to which he or she is to be regarded, by travelling in the vehicle, as having accepted responsibility for the risk of the driver acting as he or she did.

13. [92]

    The respondent’s conduct in travelling in the vehicle exposed him to the risk represented by a driver whose driving capacity and decision-making was known or ought to have been known to be somewhat impaired due to alcohol. In terms of culpability, that conduct has to be contrasted with the appellant’s conduct in deciding intentionally to take the vehicle partly off the roadway in order to hit a guidepost or posts. From the perspective of the 16 year old respondent the driver’s doing so was not an obvious or likely consequence of mild impairment, particularly given the appellant’s assurance that he was alright to drive and the absence of any other indication that he might engage in reckless or irresponsible conduct.

14. [93]

    In the circumstances, there should have been some reduction in the respondent’s damages to reflect his lack of care. The primary judge erred in concluding otherwise. However, that reduction must reflect the significant difference in the respective culpability of the parties. I consider a just and equitable reduction to be 10%.

Proposed orders

1. [94]

   In the result the appeal should be allowed and the judgment for the respondent in the sum of $1,638,062 given on 12 November 2014 set aside. Instead there should be judgment for the respondent in the sum of $1,474,256, that judgment to take effect on 12 November 2014.

2. [95]

   The notice of appeal does not seek to set aside or vary the primary judge’s order that the appellant pay the respondent’s costs of the proceedings at first instance. As to the costs in this Court, although the appeal is to be allowed, the appellant failed in relation to his main argument as to why the primary judge’s conclusion as to contributory negligence should be set aside and the award of damages reduced. The appellant’s alternative argument for that result was put briefly and shortly developed. It occupied significantly less than half of the pages spent in written submissions and of the time spent in oral argument. In this respect, the success of the respondent on the issues debated in this Court was substantial. Although the general position is that costs will follow the event, this Court has wide discretionary powers and may make a special order as to costs where there have been mixed outcomes in proceedings. See Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 and the authorities cited in that case. Notwithstanding that the appellant succeeded in the result, the respondent should recover some of his costs incurred in relation to the principal issue on which he was successful. The appropriate order is that the appellant pay 25% of the respondent’s costs of the appeal.

3. [96]

   The orders I propose are:

4. [97]

   SIMPSON JA: I agree with Meagher JA.