Judgment date: 21 June 2011
Allianz Australia Insurance Limited v Glenn Swainson  QCA 136
Queensland Court of Appeal1
- Where there is no independent evidence to the contrary, judges are entitled to draw inferences from the findings of fact based on common sense and their "own experience of life".
- Intoxicated plaintiffs, who by their actions are the main cause of a motor vehicle accident, may bear the greater proportion of responsibility.
The plaintiff brought proceedings arising out of a motor vehicle accident which occurred at about 9.30 pm on 5 December 2006. Prior to the accident, the plaintiff had been at a local hotel where he had been consuming alcohol. Following his departure from the hotel, the plaintiff decided to walk the 6 km distance home. He decided to hitch hike (despite having his bicycle available to ride home from the pub), due to his intoxication.
In order to increase the likelihood of being picked up by a passing motorist, the plaintiff walked within the 'fog line' on the left-hand side of the road. That is, the plaintiff walked with his back to the traffic on the left-hand side of the road. The accident occurred approximately 2 km into the plaintiff's journey when the defendant's motor vehicle collided with the plaintiff.
The District Court judge found that the defendant was negligent by failing to keep a proper lookout and by failing to slow to a speed, so as to avoid the collision with the plaintiff. Essentially, the judge found that had the defendant seen the plaintiff earlier, moved his vehicle to the right, and/or slowed down, the collision would have been avoided.
In summing up, the trial judge held:
After finding the defendant negligent, the primary judge then reduced the damages awarded by 40% due to the plaintiff's own contributory negligence.
Of relevance to the primary judge's findings was the fact that the plaintiff was intoxicated (as defined by the Civil Liability Act 2003 (Qld)); failed to walk on the footpath provided; failed to walk on the right hand side of the road (thereby facing oncoming traffic); and stepped into the path of the defendant's vehicle when it was approaching.
Court of Appeal
The defendant challenged the findings of primary negligence, as well as the apportionment of contributory negligence.
In relation to the former, the defendant argued that the primary judge reached her conclusions by "engaging in unwarranted and unsupported speculation by relying on her 'own experience of life' and by engaging in hindsight reasoning"3.
Specifically, the defendant said that the primary judge's findings of fact did not justify the inference that the defendant should have seen the plaintiff in sufficient time to take evasive action and thereby avoid the collision. The defendant submitted that the findings were unsustainable in the absence of evidence on the throw of the headlights of the vehicle, so as to establish the extent to which the plaintiff would have been visible to the defendant's vehicle, and the reaction time the defendant had.
Ground 1 – Breach of Duty of Care
The Court of Appeal unanimously held that the defendant breached the duty of care owed to the plaintiff.
The Court held that whilst there was no "independent evidence" concerning the reach and throw of the headlights:
The Court affirmed the primary judge's findings of fact and affirmed the finding that the defendant was negligent in failing to keep a proper lookout and failing to slow down and avoid the collision with the plaintiff. They held that whilst there was no doubt that the plaintiff had a part to play in the collision, there was no error in the trial judge's findings of primary negligence.
Ground 2 – Contributory Negligence
The defendant successfully argued that the plaintiff's conduct was more culpable than that of the defendant. The defendant argued that the primary cause of the accident was the plaintiff's intoxication and the fact that the plaintiff stepped onto the road directly into the path of the defendant's vehicle, which gave the defendant only a limited opportunity to observe and take action to avoid the collision.
In overturning the primary judge's findings and assessing contributory negligence at 60%, the Court of Appeal said:
The decision establishes that whilst a driver will generally be held to a high standard of care, a plaintiff, whose inadvertent conduct is contributed to by intoxication, may be found to have significantly contributed to their own loss.
Further, a trial judge will not fall into error where an inference is drawn in the absence of evidence by relying on their own experiences of life. This is a common sense approach to issues of causation.
1 Fraser JA; Ann Lyons J; Martin J
2 Swainson v Carruthers & Anor (unreported, DC(Qld), McGinness DCJ, No 199/09, 5 October 2010 at 43-44, as referred to by Fraser JA at para 5
3 per Fraser JA at para 8
4 per Fraser JA at para 24
5 per Fraser JA at para 31
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