Intoxication And Contributory Negligence - Legless Pedestrian Lands On His Feet

Copyright (c) 2013 Cherie Flowers

Imagine the scenario, you have consumed numerous drinks, exactly where, when and how many of those drinks were consumed is not entirely clear on the evidence but you are pretty sure the last place you consumed them was at the local tavern with a friend. You leave the tavern and decide to walk to your sister's house alone. You get hit by a vehicle on the way but do not know who hit you because the driver did not stop. You are sure it happened at a roundabout. You are unsure precisely how you became injured as a result of the accident, except to say that you felt pain in both feet. You are pretty sure someone drove you to your sister's house after the accident and know that you made it there safely because your sister found you asleep on her front lawn.

You are taken to hospital by ambulance. You give conflicting stories about what happened to the paramedics who responded to the call for assistance and to the medical specialists who examined you while you were in hospital. The police officers also visited you and conflicting versions of what happened were recorded in their respective notebooks.

It all seems a bit of an evidentiary kerfuffle right?

Not according to DCJ McGill in Gary John McLean & Nominal Defendant [2012] QDC 73; where the facts were remarkably similar to the above scenario. In that case, Justice McGill analysed the evidence and accepted that the only plausible explanation for the Plaintiff?s injuries was that he had been hit by an unidentified vehicle. Justice McGill noted the following:

The Plaintiff was intoxicated when the accident occurred;

The Plaintiff had consistently stated that he had been hit by a vehicle and that the accident happened at a roundabout;

That it was unlikely that the unidentified driver would be driving at an overly excessive speed around the roundabout;

There was only 1 roundabout in the vicinity of the tavern and the Plaintiff's sister's house;

The inconsistencies in reporting of paramedics and doctors was not considered to be of any real significance; and

The orthopaedic surgeons agreed that the injuries were consistent with the Plaintiff's feet being run over by the tyre or tyres of a vehicle.

Justice McGill was satisfied that the driver of the unidentified vehicle breached his or her duty of care by failing to keep a sufficient lookout to be aware of the presence of the Plaintiff as he approached and negotiated the roundabout.

The Defendant argued that the Plaintiff ought to be partly responsible for the accident due to his intoxication and contributory negligence was litigated pursuant to section 47 of the Civil Liability Act 2003 ('CLA'). Section 47 provides that there is a presumption of contributory negligence if a person who suffered harm was intoxicated at the time of the breach giving rise to the claim for damages. The presumption can be rebutted by the Plaintiff if the Plaintiff can establish on the balance of probabilities that the intoxication did not contribute to the Defendant's breach of duty.

Justice McGill was satisfied that the Plaintiff was intoxicated at the time of the accident however was not satisfied that the Plaintiff's intoxication contributed to the unidentified driver's failure to keep a sufficient lookout. Justice McGill held that that there was no basis for contributory negligence pursuant to section 47 of the CLA. Justice McGill added on a precautionary basis that the outcome may have been different if the matter had been litigated on the basis of contributory negligence at common law. Fortunately for the Plaintiff, common law contributory negligence was not litigated. Unlike section 47 of the CLA, the common law does not require that there be a causative link between the Plaintiff's intoxication and the Defendant?s breach of duty for contributory negligence to be established.

Had common law contributory negligence been litigated, Justice McGill would have found contributory negligence on the part of the Plaintiff and apportioned his responsibility for the accident at 20%. At common law, on the facts of this particular case, being that the accident occurred at a roundabout and that excessive speed was unlikely to be a factor, the Plaintiff, in his intoxicated state would have taken longer to react to the presence of the vehicle than what would have been the case had he been sober.'

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