French v QBE Insurance (Australia) Limited  QSC 105
Stephen Crouch went to a friend's barbeque and drank a bottle of rum and two glasses of bourbon. His friends decided that it would be best that he go home and called him a cab. His friends assisted him into the taxi and asked the driver to take him to 37 Yangoora Crescent and to 'get him home safely'.
The taxi driver misheard the address and took him to 27 Yangoora Crescent. The ride was only 10 minutes but by the time they arrived Mr Crouch had fallen asleep. The driver was unable to wake him, and went and spoke to the occupant of number 27 who denied knowing anything about the passenger. The driver called his base asking for police assistance. He opened the back door of the cab and Mr Crouch fell onto the footpath. He drove off with Mr Crouch's mobile phone and left Mr Crouch 'pissed and legless' lying on the grass, wet from rain. He told the operator he had got the passenger out and had been paid.
Mr Crouch did not go home. Some time later, the occupant of a house about a kilometre away from Mr Crouch's home encountered Mr Crouch, drunk and lying across his driveway. To get there, Mr Crouch must have crossed Currumburra Road which is a four lane divided sub arterial road, walking in the direction towards the Southport Football Club. He would have had to cross this road again to go home. After he staggered away from the driveway, he was later found lying on the carriageway of Currumburra Road, having been run over by an unidentified vehicle. He was run over a second time by a 19 year old driving a Camry that had only one headlight working. Mr Crouch was still alive but died at the scene. At the time of death his blood alcohol reading was 0.235 mg/mL.
Mr Crouch's widow, on behalf of herself and Mr Crouch's four children, sued the nominal defendant (in respect of the driver of the unidentified vehicle), the 19 year old Camry driver, the taxi driver and the taxi company. She was successful against the nominal defendant and the taxi driver, and damages for the dependency claim were assessed at $762,350.
The 19 year old Camry driver and the taxi company
The claims against the 19 year old Camry driver and the taxi company failed.
Whilst the 19 year old Camry driver breached his duty of care to Mr Crouch by running him over whilst he was still alive, it could not be established which parts of his body were hit by the Camry and it was not proven that the impact contributed to his ultimate death, which was caused by the driver of the unidentified vehicle.
It was also held that there was no breach by the taxi company who did not employ the taxi driver and only operated a booking agency service.
The taxi driver
The evidence of the taxi driver, that Mr Crouch gave him his mobile phone as security for the fare, was rejected. It was inferred that he simply took the phone as compensation for his lost fare.
It was held that the contract of carriage contained an express term to take Mr Crouch safely to his home at 37 Yangoora Crescent and that the taxi driver breached this term and also his duty of care to Mr Crouch. He drove to the wrong address. He should have confirmed and recorded the address to which he was to deliver his drunk passenger. He could have waited for the police, taken Mr Crouch to a police station or back to the party.
Drawing a distinction between what had occurred and a plain 'failure to rescue', His Honour drew a biblical analogy that the taxi driver's position 'was more akin to that of those who left their victim for dead on the road to Jericho than to that of those who passed by on the other side'.
It was held that because the taxi driver breached the express term of the contract of carriage to take Mr Crouch safely to his home at 37 Yangoora Crescent, damages awarded for the breach of that term could not be reduced for contributory negligence.
Whilst the plaintiff conceded that Mr Crouch was guilty of contributory negligence, it was held that a finding of contributory negligence was not open on the evidence. Whilst Mr Crouch was voluntarily extremely intoxicated, getting run over was not objectively, a reasonably foreseeable consequence of simply getting drunk at a party at a friend's house. Whilst it was foreseeable that he might be sent home in a taxi, it was not foreseeable that he might be wandering the streets incapacitated by alcohol.
Liability was apportioned 20% to the driver of the unidentified vehicle and 80% to the taxi driver.
Taxis perform an important social role. People are encouraged to take a taxi after having a few drinks and not drive their own vehicles. His Honour commented that this role must carry with it some responsibility for the inebriated passengers, and observed that the taxi drivers and the taxi companies were in the best position to control the risks. However, it is also the case that unless a person's state of intoxication is going to cause a nuisance to the taxi driver or the other passengers, the person's state of intoxication is not a ground for the taxi driver to refuse the ride.
It was held that the taxi company owed no duty to Mr Crouch to promulgate by-laws or directions to its taxi drivers relating to the care of incapacitated or inebriated passengers. If the taxi company held itself out as ensuring that its drivers would behave in a particular way if a passenger was or became intoxicated, then that may have given rise to a basis to find the taxi company also liable.
Notwithstanding the express term that applied because Mr Crouch's friend told the taxi driver to 'get him home safely', His Honour described the duty of care that the taxi driver owed as to deliver his passenger to a place of safety or to another person who would look after him. His Honour held that if the taxi driver had driven to the correct address he would have found Mr Crouch's wife at home and she would not only have paid him but would have ensured Mr Crouch's safe reception into the house. It follows that in order for a taxi driver to properly discharge the duty owed to an inebriated passenger, the driver must make sure that the passenger is safely at their destination after disembarking.
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