Hawira v Connolly[2008] QSC 4

SUPREME COURT OF QUEENSLAND

Introduction

[1] DAUBNEY J:  On 5 April 2006 Ms Connolly was the owner and driver of, and Mr Hawira was the passenger in, a Ford Falcon Utility (‘the vehicle’) which, at about 6.25 pm, was involved in a single vehicle accident on the Logan Motorway, at a point about 1.5 kilometres east of the Logan toll booth.  They were on a dual-lane carriageway, travelling in an easterly direction.  The vehicle was in the right hand lane and veered across the left hand lane before leaving the road, rolling and coming to rest upside down in a ditch adjacent to the roadway.  Suncorp Metway Insurance (‘Suncorp’) was the CTP insurer of the vehicle.

[2] This accident gave rise to the following claims:

(1)A Magistrates Court claim by Ms Connolly against Mr Hawira for the property damage to the vehicle;

(2)A claim by Ms Connolly against Mr Hawira and Suncorp in respect of the personal injuries she suffered in the accident;

(3)A claim by Mr Hawira against Ms Connolly and Suncorp in respect to the personal injuries he suffered in the accident.

[3] On 2 July 2007, Wilson J ordered the transfer of the Magistrates Court proceeding to this Court, and made orders and directions to enable the issues of liability and contributory negligence in each of the claims to be heard and determined together.

[4] The questions which need to be answered in order to make these determinations can be cast as follows:

(a) Did the accident occur in the manner propounded by Ms Connolly in her evidence?  The question is posed in this way because Mr Hawira has no recollection of the events immediately prior to the accident, and if Ms Connolly’s version is accepted then Mr Hawira is squarely implicated as having, by his conduct, been the direct cause of the accident.  On the other hand, Ms Connolly propounds no alternative case to that founded in her version of events, and if that version is rejected she will be found to be liable for the accident.

(b) If Connolly’s version is not accepted, and she is found liable for the accident, then:

(i) was Mr Hawira wearing a seatbelt at the time of the accident, and if not what, if any, apportionment should be made against him for contributory negligence in that regard?

(ii) are the provisions of ss 47-49 of the Civil Liability Act 2003 (Qld) (‘CLA’) invoked on the facts of this case, and if so to what effect?

Liability

[5] Ms Connolly was the proprietor of a tree lopping business.  Mr Hawira was one of the subcontractors she engaged to work in that business.  He was also a friend who spent time with her outside work hours.

[6] On the day of the accident, Ms Connolly had arranged to meet a builder with insurance contacts, Mr Falconer, who was interested in engaging Ms Connolly’s firm to undertake tree lopping work.  Ms Connolly and Mr Falconer arranged to meet at Dooley’s Hotel at Meadowbrook at 3.00 pm.  Mr Hawira accompanied her to the hotel, although he was not to be part of the business meeting between Ms Connolly and Mr Falconer.

[7] Ms Connolly drove Mr Hawira to the hotel in the vehicle.  Mr Falconer was already at the hotel when they arrived.  Ms Connolly introduced herself and Mr Hawira to Mr Falconer, who already had a light beer on his table.  Mr Hawira went to the bar and bought a jug of full-strength beer, which he brought back to the table, and from which he poured a beer for Ms Connolly.

[8] Ms Connolly then sat with Mr Falconer and had a business discussion with him.  She said that this meeting with Mr Falconer lasted about an hour and a half.  During the time that she was meeting with Mr Falconer, Mr Hawira was wandering through the hotel, coming back to the table periodically and topping up Ms Connolly’s beer glass from a jug he was carrying, but otherwise not taking much part in the discussion between Ms Connolly and Mr Falconer.  Ms Connolly had previously told Mr Hawira that she did not want him to be part of the meeting.

[9] Ms Connolly said that she became very upset with Mr Hawira when, towards the end of her meeting with Mr Falconer, and at a time when Mr Hawira was at the table, Mr Falconer mentioned that he was a builder, to which Mr Hawira suggested to Mr Falconer to the effect that Mr Falconer would have ready access to materials.  Ms Connolly says that she asked Mr Hawira why he would be wanting materials, to which Mr Hawira responded to the effect that they were needed ‘for little mishaps and stuff-ups on the jobs’.  Mr Falconer excused himself shortly after that to take a phone call and, in his absence, Ms Connolly confronted Mr Hawira and asked him why he had said what he had said.  Ms Connolly’s evidence was that Mr Hawira said that he did not know and that he was sorry.  Mr Falconer returned to the table, and left shortly after.

[10] After Mr Falconer left, Ms Connolly and Mr Hawira stayed at the hotel until about 5.45 pm.  During that time, Ms Connolly stayed at the table at which she and Mr Falconer had been seated, while Mr Hawira continued to wander around the hotel.   During this period of time after Mr Falconer had left, they argued with one another.

[11] During the entire time that Ms Connolly and Mr Hawira were at the hotel, Mr Hawira had been buying jugs of beer and topping up Ms Connolly’s glass.  They were drinking VB full-strength beer.  Ms Connolly estimated that Mr Hawira had bought four jugs of beer over the course of the afternoon, but she found it difficult to say how much she had drunk because Mr Hawira was continually topping up her glass. I should note here that Mr Falconer’s recollection was that, during the time of his meeting with Ms Connolly, she drank only two mid-strength beers which he had bought for her. However, in view of the independent evidence as to Ms Connolly’s subsequent degree of intoxication, to which I will refer below, I consider it more likely, as stated in evidence by Ms Connolly herself, that she was drinking the “heavy” beer poured for her by Mr Hawira.

[12] Shortly before 6.00 pm, Ms Connolly saw Mr Hawira talking to her ex-husband.  She told Mr Hawira that she was going home and that she would be waiting for him at the car in the hotel car park.  She says that she waited about 10 minutes for him in the car park before going back in and saying to him that she was leaving and that if he wanted a lift he would have to leave now.  He left the hotel, and the two of them went to the vehicle in the hotel car park.  Ms Connolly got into the driver’s seat and Mr Hawira into the passenger’s seat.  She said in evidence that she did not remember whether Mr Hawira did his seatbelt up.

[13] The preceding paragraphs set out Ms Connolly’s version in evidence of what occurred at the hotel and was not countered in any serious way by Mr Hawira.  He recalls that when they left the hotel, Ms Connolly was angry with him because he had ‘made a misleading comment’ to Mr Falconer during the meeting, and also because Mr Hawira had spoken to Ms Connolly’s ex-husband at the hotel.  Mr Hawira also said that he was buying jugs of beer with money he had obtained from Ms Connolly, that he had purchased four jugs of beer, and that he ‘presumed’ that he had drunk a larger amount than she had because he was ‘basically going around the hotel and returning to the table every now and then’ to top the glasses up.

[14] It is from this point on, however, that their versions diverge.

Ms Connolly’s version

[15] Ms Connolly’s version of the journey from the hotel is as follows. She drove the vehicle from the hotel car park to the Logan Motorway via Loganlea Road, and stopped at the toll booth.  She found when she reached the toll booth that she did not have any money, and nor did Mr Hawira.  She recognised the attendant in the toll booth, apologised for not having a dollar and promised to pay the next morning, and the toll booth attendant let her through.  Ms Connolly and Mr Hawira did not speak during the short trip from the car park to the toll booth.  After passing through the toll booth, she and Mr Hawira started yelling at one another.  While she was driving, she heard air in the cab of the utility.  She turned to see Mr Hawira having opened the passenger door and hanging out of the vehicle.  He said ‘I’m going to jump’, and she told him to get back in the vehicle, to put his seatbelt on and to stop being stupid.  She told him they were three minutes from home.  After some seconds, Mr Hawira closed the door.  He did not have his seatbelt on, and he did not put it on again after he had closed the door.  They were driving in the right hand lane at the time at a speed of about 90 kilometres per hour and, at a point which Ms Connolly subsequently measured as being about 1.5 kilometres from the toll booth, Mr Hawira lunged across in front of her, grabbed the top of the steering wheel and reefed the steering wheel in a counter-clockwise direction through about 180 degrees, saying that he would get himself out of the car.  Ms Connolly was unable to do anything because she was pinned in place by Mr Hawira, and after he had pulled the steering wheel down towards him the vehicle ‘quickly veered to the left, crossing over the lanes’, went off the side of the road where it slid, hit a tree, flipped, hit more trees and then slid until it ended up on its roof in a ditch.  Ms Connolly lost consciousness for a short period of time, and regained consciousness ‘hanging upside down in the car’ being held in place by her seatbelt.  Mr Hawira was lying on the interior roof of the vehicle (in its upside down position) in the foetal position.

[16] Under cross-examination Ms Connolly reaffirmed her version of Mr Hawira’s conduct in reefing the wheel in the following passage:

Then at this the crucial point you say that he lent over, grabbed the top of the steering wheel which you had at the 10 o'clock/2 o'clock [p]ositions held, and he reefed that steering wheel down?--  That's right.

And by the motion you indicated in the witness-box, I suggest you were intending to convey that he pulled the steering wheel down from his hand at the top to about his hand at the bottom?--  To my lap.

To your lap.  All right.  So he's pulled that steering wheel through 180 degrees at a speed of 90 kilometres an hour or thereabouts?--  That's correct.

And what happened to your car?--  It instantly...went this way and that's where I'm screaming into Dave's ear.

...as you put it?--  Instant.

You're putting two hands to your left to 90 degrees, and making a whistling type noise, suggest that the car changed direction 90 degrees left more or less instantly?--  Yes.

Is that so?  Screaming tyres, I suppose?--  Pardon?

Screaming tyres?--  Screaming tyres, no.

No.  Car heeling over about to roll?--  Yes.

Oh, it was?  It was about to roll over-----?--  My side.

-----down the road.  Okay.  And he keeps hold of this wheel, doesn't he?  You told us that earlier?--  That's his initial reaction, what he did.

No, no-----?--  To keep hold of it, he's buckled me up into the quarter window of my car, so therefore I'm pinned.

You're pinned and he's still got hold of this wheel?--  That's right.

Right.  And the wheel's still at 180 degrees-----?--  Yes.

-----from the direction you had it?--  Yes.

So this car at this point is starting to circle; is that right?--  No. It's completely gone straight this way...

Oh.  Well, he must have let the wheel go then?--  Why is that?

Well, otherwise, you see, if you've got the wheels turned, the cars keep going round and round like that?--  But we didn't have that much room for it to turn around.

Oh, I see.  So it's gone straight off the road then?--  That's right, into the ditch.

Straight off the road into the ditch?--  Where my side had hit a tree.

Mr Hawira’s version

[17] Mr Hawira’s evidence was to the following effect.  After he and Ms Connolly left the hotel car park, she gave him an angry tirade.  When they stopped at the toll booth, there was an issue about not having enough money to pay the toll and he decided that he ‘wasn’t going to cop the barrage any more’ and told Ms Connolly that he would rather get out of the car now and catch a train home ‘instead of getting yelled at all the way home’.  He undid his seatbelt, opened the door, and went to put his foot out of the car, at which point Ms Connolly drove off from the toll booth and turned to him saying ‘No you’re not – I’m not going to let you out’.  She told him that she had brought him, and she was taking him home.  He said that he had no choice but to accept what she said.  The car was travelling fast, and he closed the door.  He said in evidence that he could remember grabbing the seatbelt, and that his next recollection was recovering consciousness in hospital.

Conclusion on liability

[18] I am disinclined to accept Ms Connolly’s version of the events which she says occurred immediately prior to, and caused, the accident.  There are a number of reasons for me not accepting her version.

[19] First, her version does not align with the physical evidence of the accident scene.  On Ms Connolly’s version, a motor vehicle travelling at about 90 kilometre per hour underwent a violent change of direction to the left as a consequence of Mr Hawira allegedly reefing the steering wheel counter-clockwise through 180 degrees.  Several times in the course of her evidence, Ms Connolly demonstrated the sudden and violent change of direction which she said occurred by motioning in such a way as to indicate that the car had veered left at an angle of 90 degrees, and accompanied this physical demonstration with a ‘whooshing’ sound.  Common sense indicates that, had the vehicle travelling at this speed been subjected to such a violent change of direction (and Mr Hawira held the steering wheel in the way described by Ms Connolly), one would have expected to have seen some physical evidence of that – even if the vehicle had not rolled or tipped, one might have seen skid marks, and in any event the direction of exit from the carriageway would have been at a pronounced angle.  The photographs of the site, however, show wheel or skid tracks in the ground adjacent to the carriageway running at a much finer angle than would have resulted if the vehicle had exited the motorway in the manner described by Ms Connolly.  Nor were there any skid marks on the roadway.  This lack of indicia of the accident occurring in a way consistent with the version described by Ms Connolly leads me to view her version as implausible.

[20] Secondly, Ms Connolly has displayed a tendency to mendacity in connection with this accident.  She has supplied a number of different versions of what occurred:

(a) On her initial version, she was not even the driver of the vehicle – she said that there was another unidentified third party who was driving.  This is the version she gave to the ambulance officer who attended the scene of the accident and also to Ms Conway, the triage nurse at the Logan Hospital to which Ms Connolly was transported after the accident.  Ms Connolly only abandoned this version after she became aware that Mr Hawira had no memory of the accident and was confronted by the police with the evidence of the toll booth operator that she had been identified as the driver.  That led to the next version.

(b) In September 2006, Ms Connolly gave a statement to the police in which she said:

I did not make the accident happen.  The wheel was taken out of my control.  I was in the outside lane and by force it was taken out of my control.

(c)The version that she gave at trial was, to put it most generously for her, a greatly expanded version of that which she gave to the police on 4 September 2006.

In the course of cross-examination of each of Ms Connolly and Mr Hawira, various bases for their respective motivations to potentially misstate matters were canvassed, including by reference to their previous driving histories.  When Ms Connolly’s blood alcohol concentration was tested after the accident, her reading was 0.119, which was well over the legal limit.  Given her prior driving offences, including three convictions for driving under the influence of alcohol, Ms Connolly could expect that any charge arising out of this accident would have very serious consequences for her and her business.

[21] I will deal with the issue of intoxication again later, but should record here that I find that, at the time of the accident, Ms Connolly’s capacity to drive was impaired as a consequence of her consumption of alcohol.  She had been drinking full-strength beer continually over a period of some three and a half hours before getting behind the wheel of the vehicle.  Her blood alcohol concentration some two hours after the accident was found to be 0.119%.  The notes of the ambulance officer who attended the scene record that Ms Connolly ‘appeared unsteady, agitated, defiant’ and that she hindered the ambulance officers in taking observations.  It is also recorded that she agreed she was intoxicated.  The triage nurse at the Logan Hospital, Ms Conway, had a very good recollection of Ms Connolly.  Ms Conway said that Ms Connolly was intoxicated and aggressive when she was brought to the hospital by the ambulance.

[22] My rejection of Ms Connolly’s version of the way in which the accident occurred, combined with my findings as to her intoxication at the time of the accident, compel the inference that she was negligent in her operation and control of the vehicle such as to cause the accident.  That inference can readily be drawn from the fact that she was the driver of a vehicle, control of which was lost such as to cause it to depart the carriageway, in circumstances where her capacity to control the vehicle properly was impaired by the consumption of alcohol.

Contributory negligence

[23] Ms Connolly and Suncorp contend that there should be an apportionment of liability by reason of Mr Hawira’s contributory negligence resulting from:

(a)his failure to wear a seatbelt at the time of the accident; and

(b)the operation of s 47 and/or s 48 of the CLA.

Seatbelt issue

[24] It is trite to observe that Ms Connolly and Suncorp bear the onus of persuading me to find, on the balance of probabilities, that Mr Hawira was not wearing a seatbelt at the time of the accident, and that this failure by him contributed to the injuries he suffered. 

[25] It will be recalled that, on Ms Connolly’s version, when she regained consciousness after the accident, she saw Mr Hawira lying in a foetal position on the inside of the roof of the cabin.  This suggests he was unrestrained at the time of the accident.  The ambulance attendance records record him saying that he was unsure if he was wearing a seatbelt, but Dr Papacostos, who was the neurological registrar at the Princess Alexandra Hospital (to which Mr Hawira was transferred from the Logan Hospital) recorded on examination of Mr Hawira that Mr Hawira stated that he was ‘unrestrained’. 

[26] Dr John Cameron, consultation neurologist, provided a report which reviewed the injuries suffered by Mr Hawira in the context of the circumstances of trauma to the vehicle which obtained in this accident, and concluded that the injuries sustained by Mr Hawira were consistent with those of a person who was unrestrained at the time of an accident of this nature.

[27] Mr Hawira, of course, says that he has no memory of the accident itself, and, in evidence before me, said that his last recollection was after his failed attempt to exit the vehicle while it was stopped at the toll booth and grabbing his seatbelt.  Some support for an inference that he was wearing a seatbelt at the time of the accident was sought to be drawn from the evidence of Dr Novelli, who examined Mr Hawira when he was brought by ambulance to the Logan Hospital after the accident.  Dr Novelli noted that Mr Hawira had suffered bruising in the area just below the sternum and the lower right abdominal area.  When asked whether this pattern of bruising was consistent with the wearing of a seatbelt he said:

Yes.  These bruises would be consistent with a seatbelt injury, as with lots of other blunt contusion of the abdomen, lots of other causes.

[28] I am reluctant to accept, or place much weight on, Mr Hawira’s evidence before me that his last memory was of grabbing the seatbelt.  He, too, has had the opportunity to record his version of events in relation to the accident on a number of occasions, including giving a statement to police in September 2006 (which itself contained inconsistent versions of what he was able to recall).  Moreover, on 18 September 2007 (nine days before he gave evidence), Mr Hawira made a statutory declaration in response to a request for information made by Suncorp under s 45(1) of the Motor Accident Insurance Act 1994 (Qld) (‘MAIA’).  That request for information included:

3.From the time of the commencement of the journey until the time the accident occurred, do you have a continuous recall of the events that occurred throughout the journey?

4.If the answer to question 3 is ‘No’:

(a)What is your last recollection before the accident?

(b)What approximate period of time elapsed between the time of your last recollection before the accident occurred and the time of the accident?

5.At the time of your last recollection before the accident, was the seat position occupied by you fitted with a seatbelt?  If so:

(a)Was the seatbelt properly adjusted and securely fastened?

(b)What type of seatbelt was it (i.e. a lap/sash seatbelt, or a lap seatbelt, or other (specify which)?

[29] In his statutory declaration, Mr Hawira stated:

3.No, I do not have a continuous recall of the events that occurred throughout the journey from the time of it starting to the time of the accident.  I recall leaving Dooley’s.  I recall pulling up at the toll booth and moving on.  I next recall being attended to at the Logan Hospital.

4.My last recollection was leaving the toll booth.  I don’t know what time elapsed between then and the accident.

5.(a)Yes.

(b)Yes

(c)Lap/sash.

[30] A number of points adverse to Mr Hawira’s credibility before me emerge from this statement.  It is obviously inconsistent with the version he gave in evidence in chief, critically in that he positively asserted in the statutory declaration that he was wearing a seatbelt at the time of his last recollection, whereas his evidence before me fell significantly short of that statement.

[31] On balance, I am persuaded to find that it was more likely than not that Mr Hawira was unrestrained at the time of the accident.  It is clear from Dr Cameron’s evidence, which was completely uncontradicted in this regard, that if he had been suitably restrained at the time of impact, it was highly probably that his injuries would have been far less severe or significant.

[32] I propose apportioning 16 per cent contributory negligence to Mr Hawira for his failure to wear a seatbelt at the time of the accident.

CLA provisions

[33] Part 2 Div 2 of the CLA contains the following provisions:

46Effect of intoxication on duty and standard of care

(1)The following principles apply in relation to the effect that a person’s intoxication has on the duty and standard of care that the person is owed –

(a)in deciding whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated;

(b)a person is not owed a duty of care merely because the person is intoxicated;

(c)the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.

(2)Subsection (1) does not affect a liability arising out of conduct happening on licensed premises.

(3)In this section –

licensed premises see the Liquor Act 1992, section 4.

47Presumption 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 bloody;  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%.

48Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated

(1)This section applies to a person who suffered harm (plaintiff) who –

(a)was at least 16 years at the time of the breach of duty giving rise to the harm;  and

(b)relied on the care and skill of a person who was intoxicated at the time of the breach of duty (defendant);  and

(c)was aware, or ought reasonably to have been aware, that the defendant was intoxicated.

(2)If the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed.

(3)The plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that –

(a)the defendant’s intoxication did not contribute to the breach of duty; or

(b)the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill.

(4)Unless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff 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)The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.

49Additional presumption for motor vehicle accident

(1)This section applies to a plaintiff and defendant mentioned in section 48.

(2)If –

(a)the breach of duty giving rise to the harm suffered by the plaintiff was a motor vehicle accident;  and

(b)the plaintiff was a passenger in the motor vehicle;  and

(c)the motor vehicle was driven by the defendant;  and

(d)either –

(i)the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood;  or

(ii)the defendant 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 section 48(4) is increased to 50%.

(3)the plaintiff is taken, for this section, to rely on the care and skill of the defendant.

[34] Before turning to the application of those provisions to the present case, it is necessary to say something about the levels of intoxication of each of Mr Hawira and Ms Connolly.  As already noted, they agree that, between them, they consumed four jugs of ‘heavy’ beer over the course of some three and a half hours on the afternoon in question.  It is artificial in the extreme to expect either of them to have kept track of precisely how much each of them was drinking.  It seems likely that Mr Hawira may have consumed a little more than half of the total quantity of beer.  However, I regard their own self-assessments as to their respective states of sobriety at the time they left the hotel as unreliable.  Ms Connolly, for example, said that, when she left the hotel, she felt that she was fully able to drive and did not believe that she was ‘over the limit’, but described Mr Hawira as being very intoxicated and more drunk than she had ever seen him before.  Mr Hawira described his own condition as ‘tiddly’, but said that he did not think that Ms Connolly was intoxicated. 

[35] I derive much more assistance in my assessment of these matters from the observations of the professionals who attended on Ms Connolly and Mr Hawira in the hours after the accident:

(a)The ambulance notes record observations consistent with Ms Connolly being intoxicated, and indeed record her agreeing that she was intoxicated.  These same notes also recorded that she stated that she was adamant that she was not driving because she had been drinking.

(b)The ambulance notes concerning Mr Hawira record him admitting to having consumed a large quantity of alcohol that afternoon.

(c)Ms Conway, as I have already noted, was adamant that Ms Connolly was intoxicated when she was admitted to the emergency department of the Logan Hospital, and was acting aggressively.  She also recalled that Mr Hawira was, to her observation and assessment, intoxicated.

[36] At 8.23 pm on the day of the accident, a breath analysis of Ms Connolly revealed a blood alcohol concentration of 0.119%.  This was some two hours after the accident had occurred.  Dr Ann Louise Swain, clinical forensic medical officer, has supplied a report extrapolating that measurement according to elimination of alcohol by metabolism and excretion, and concluded that, at about 6.20 pm, Ms Connolly’s blood alcohol concentration would have been in the range of 0.1395 to 0.1805.

[37] The term ‘intoxicated’ is defined for the purposes of the CLA to mean, in relation to a person, that ‘the person is under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired.’ (Schedule 2)

[38] I find that each of Ms Connolly and Mr Hawira was intoxicated, within the meaning of that term in the CLA, at the time of the accident.

[39] In view of that finding, the operation of each of s 47 and s 48 of the CLA is called into play.

[40] Section 47 is invoked because Mr Hawira, being the person who suffered harm, was intoxicated at the time of Ms Connolly’s breach of duty, and contributory negligence has been alleged against him.  By sub-ss 47(2) and (3) a presumption of contributory negligence against Mr Hawira can only be rebutted by him establishing on the balance of probabilities:

(a) that his intoxication did not contribute to Ms Connolly’s breach of duty; or

(b) his intoxication was not self induced.

[41] There is no suggestion that Mr Hawira’s intoxication was not self induced.  Thus, he will succeed in rebutting the presumption of contributory negligence only by establishing, on the balance of probabilities, that his intoxication did not contribute to Ms Connolly’s breach of duty.  For Mr Hawira, it was submitted that the relevant breach of duty (Ms Connolly’s failure to control the car) was not causally related to Mr Hawira’s intoxication, and that the claim for contribution under s 47 must therefore fail.  I respectfully disagree.  My findings on liability were premised on a rejection of the version of events immediately prior to the accident presented by Ms Connolly in her evidence.  Ms Connolly did not advance any alternative version or basis for the cause of the accident.  The fact of the single vehicle accident having occurred, combined with Ms Connolly’s degree of intoxication at the time, led to the inference that she was negligent in her operation and control of the vehicle.  The drawing of that inference, however, does not of itself compel a finding that Mr Hawira has established, on the balance of probabilities, that his intoxication did not contribute to Ms Connolly’s loss of control of the vehicle.  Section 47(3), in my view, clearly casts a persuasive burden on a party in Mr Hawira’s position to establish to the requisite standard either of the matters mentioned in s 47(3)(a) or (b).  Mr Hawira has led no evidence from which I could be positively satisfied that his intoxication did not contribute to Ms Conway’s loss of control of the vehicle.  Accordingly, s 47(4) will require Mr Hawira’s damages to be assessed on the basis of a reduction, on account of contributory negligence, of at least 25 per cent.

[42] Even if I am wrong about the operation of s 47, however, it seems to me that s 48 and s 49 are clearly applicable on the facts of this case.

[43] Section 48 applies to Mr Hawira because, by reference to the prerequisites identified in s 48(1):

(a)he was at least 16 years at the time of Ms Connolly’s breach of duty;

(b)he relied on Ms Connolly’s care and skill, she being a person who was intoxicated at the time of the breach of duty;  and

(c)Mr Hawira either was aware, or ought reasonably to have been aware, that Ms Connolly was intoxicated.

[44] As to the final point, Mr Hawira was careful in his evidence in chief to say that at the time he thought that Ms Connolly was ‘quite capable of driving’, and that he never had a thought about any issue of intoxication with her.  He hedged, however, when asked directly whether he did not think she was intoxicated by saying ‘No, not really’.  Under cross-examination, he agreed that he and Ms Connolly had consumed four jugs of beer during a period of just over three hours, and that over that period she had drunk about one glass less than he had.  Under cross-examination by counsel for Ms Connolly (in her personal injuries proceeding) the following exchange occurred:

But you accept that she drunk over that period about one glass less than you? -  Yes.

And that you were certainly well over the limit? -  I can’t say I was well over the limit.  I was tiddly, but I was over the limit for driving.

And you wouldn’t have contemplated getting into the car and driving yourself, is that what you’re going to say?  -  I wouldn’t myself, no, because I had consumed more alcohol than Michelle.

[45] It strains credibility to accept that Mr Hawira might have considered himself ‘over the limit’ for driving, but that this did not even enter his head in relation to Ms Connolly who had, on his version, consumed only one less glass of beer than him.  In any event, given the constancy and the duration of the time of consumption of the beer by Ms Connolly and Mr Hawira, and the amount consumed by them, I consider that Mr Hawira ought reasonably to have been aware that Ms Connolly was intoxicated.

[46] The elements of s 48(1) being satisfied, in my view, and Ms Connolly and Suncorp having alleged contributory negligence on the part of Mr Hawira, s 48(2) requires a presumption of contributory negligence against Mr Hawira.  Section 48(3) provides that he may only rebut that presumption if he establishes, on the balance of probabilities, that:

(a)Ms Connolly’s intoxication did not contribute to the breach of duty; or

(b)Mr Hawira could not reasonably be expected to have avoided relying on Ms Connolly’s care and skill.

[47] I have already held that Ms Connolly’s intoxication did contribute to the breach of duty.  No case is advanced by Mr Hawira that he could not reasonably be expected to have avoided relying on Ms Connolly’s care and skill; nor, on the facts of this case, would such an assertion be open.

[48] Accordingly, the presumption of contributory negligence against Mr Hawira pursuant to s 48 is made out.

[49] The further question is as to the extent of contributory negligence because of the potential application of the increase in the minimum reduction prescribed by s 48(4) to 50 per cent by reason of the operation of s 49.  Each of the elements mentioned in s 49(2)(a), (b) and (c) are satisfied in this case;  the only question is whether s 49(2)(d) is satisfied.   That subsection requires me to be satisfied of either one of two matters, namely:

(i)that the concentration of alcohol in Ms Connolly’s blood was 150 milligrams or more of alcohol in 100 millilitres of blood; or

(ii)Ms Connolly was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle.

[50] Mr Williams QC, who appeared with Mr Cross for Mr Hawira, contended that:

(a) there was no evidence to justify a conclusion that the concentration of alcohol in Ms Connolly’s blood was 150 milligrams or more at the time of the accident;  the breath test analysis conducted some two hours after the accident gave a reading of 119 milligrams.  Dr Swain’s report posited a range of blood alcohol concentrations for Ms Connolly at the time of the accident ranging above and below the prescribed level of 150 milligrams, and there is no proper basis for me to conclude that the concentration of alcohol in this case was 150 milligrams or more; and

(b) there was no evidence on which I could be satisfied that Ms Connolly was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle.

[51] It was also contended to the effect that s 49(2)(d)(ii) does not apply in circumstances where a blood alcohol concentration reading has been taken.  It seems to me, however, on a plain reading of the section that it operates if the court is satisfied of either of the matters specified in the subparagraphs of s 49(2)(d).  In other words, if the evidence does not prove the blood alcohol concentration at the time of the breach of duty, or  even if a defendant has a proven blood alcohol concentration reading of less than 150 milligrams, a court may, in the circumstances of a particular case, nevertheless conclude that the defendant was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle, thereby requiring the increase in the minimum reduction for contributory negligence.

[52] It will be clear from my findings above that I conclude that Ms Connolly was so much under the influence of alcohol at the time of the accident as to be incapable of exercising effective control of the vehicle.  I repeat that I am fortified in drawing this conclusion by relying on the observations of the independent medical professionals who observed the demeanour and extent of intoxication of Ms Connolly during the period shortly after the accident.

[53] Section 49 therefore operates to increase the minimum reduction for contributory negligence arising by virtue of the presumption under s 48 to 50 per cent.

Conclusions

[54] Accordingly, I conclude:

(a)By reason of my rejection of Ms Connolly’s version of the events immediately prior to the accident, I find that she was negligent in her operation and control of the vehicle such as to cause the accident;

(b)I am satisfied that Mr Hawira was contributorily negligent in respect of the injuries suffered by him in the accident by reason of a failure to wear a seatbelt, and that the apportionment for that element of contributory negligence should be assessed at 16 per cent.

(c)I am further satisfied that presumptions of contributory negligence on the part of Mr Hawira are raised pursuant to each of s 47 and s 48 (read with s 49) of the CLA, and I assess the extent to which his damages should be reduced by virtue of these elements of presumed contributory negligence at 50 per cent.

Accordingly, these elements of contributory negligence will combine to reduce the damages otherwise recoverable in respect of the personal injuries suffered in this accident by Mr Hawira by 66 per cent.

[55] I will hear counsel as to the further orders now required in these matters, and as to costs.