AAMI Limited v Hain [2008] NSWCA 46.

Bezley JA, Tobias JA and McClellan CJ

In Brief In assessing, for the purposes of section 138(2)(b) MACA, whether an injured person ought to have been aware of the driver's impairment from alcohol, consideration is to be given to the totality of the evidence including the observations and knowledge of the person and any other credible witness. The provision does not merely require consideration of the available objective evidence.

Even where there is evidence that a Plaintiff knew a driver had consumed some alcohol in the relevant period, there is no obligation, based upon that knowledge alone, to inquire as to his fitness to drive before accepting a lift.

Background The NSW Court of Appeal handed down its decision in AAMI Limited v Hain on 1 April 2008.

The appeal was from the decision of Charteris DCJ, refusing to reduce the Plaintiff's damages for contributory negligence. The Defendant had sought a reduction on the basis that the Plaintiff knew or ought to have known the driver's ability to drive was impaired as a consequence of his consumption of alcohol. Although there was unchallenged evidence of a probable blood alcohol concentration of the driver of 0.15g/100ml, pointing to the likely ingestion of the equivalent of 10 to 18 middies of full strength beer, it was found that there was nothing which ought to have alerted the Plaintiff to the fact that the driver had been drinking to excess.

The Plaintiff was 18 years of age at the time of the accident and did not hold a drivers license. He attended a hotel from about 8.00pm until closing about 2.00am. He played pool for much of the night in a social competition, consuming only one beer. He became aware of the insured driver (Wilson) in the pool room at about 9.00pm. The Plaintiff observed Wilson drink one middy and one schooner of beer and, from previous experience, did not consider him to be a big drinker. The evidence was that the Plaintiff had never seen Wilson adversely affected by alcohol. The trial judge accepted the Plaintiff's evidence that, prior to accepting a lift in Wilson's car at 2.20am, Wilson did not exhibit any signs of aggression. Nor did he have any trouble with his "standing up or walking". The Plaintiff formed the belief that Wilson was "capable of driving".

Evidence from another witness, Chapman, was that he did not think Wilson had "many beers". Another witness, Alan Riach said he had not seen Wilson drink anything and, whilst observing Wilson was "slightly affected by something", he did not consider him drunk, otherwise he would "not have got in the car with him".

The court considered evidence from a pharmacologist who expressed the opinion that Wilson would have been unsteady on his feet, his speech slurred and thick and his movements may have been clumsy in the period immediately preceding commencement of the journey.

The trial judge accepted the expert evidence to the effect that Wilson's capacity to drive the vehicle would have been seriously impaired. The remaining issue for his determination was whether the Defendant had established that the Plaintiff ought to have been aware of that impairment. He concluded that, through the eyes of an 18 year old, having just finished his schooling, the Plaintiff did not see anything in Wilson that indicated he was adversely affected. He went on to observe that "other and more experienced individuals" did not detect that Wilson was adversely affected either. Accordingly, the defence was not made out.

Court of Appeal The leading judgment in the Court of Appeal was delivered by McClellan CJ, with whom Beazley JA and Tobias JA agreed.

McClellan CJ considered the facts to be distinguishable from those in Joslyn v Berryman (2003) 214 CLR 552. In that case His Honour noted both parties had consumed "very considerable" quantities of alcohol and the Defendant (who was found to have a reading of 0.138g/100ml) was seen by others to be "quite drunk and staggering about" some hours before the journey commenced. The evidence was that the Defendant was both very drunk and very tired and that the Plaintiff should have known of the combined affect of alcohol and tiredness in impairing her ability to drive. The error identified by the High Court in that case was the Court of Appeal's failure to consider the knowledge which the Plaintiff had or should have had of the Defendant's previous drinking and other behaviour. By confining consideration to the judgment made by the Plaintiff at the point when the Defendant began to drive, the Court of Appeal in Joslyn had wrongly limited the enquiry to subjective matters. There was, in fact, a great deal more which the Plaintiff knew or, if he had himself been sober, ought to have known about the Defendant's condition in that case.

His Honour found that in the present case the trial judge appropriately examined evidence as to Wilson's behaviour in the hours leading up to the journey. He concluded:

" Although the (Plaintiff) knew that Mr Wilson had been there some hours, he had personally seen him consume only a relatively small amount of alcohol. He understood that Mr Wilson was a diabetic and reasonably believed that this imposed a discipline on his drinking habits. Although he had not been able to observe Mr Wilson during significant portions of the evening, there was nothing which ought to have alerted him to the fact that Mr Wilson had been drinking to excess. Of course this was also the judgment of Messrs Chapman and Riach. They did not react to Mr Wilson's behaviour or say anything which should have alerted the Plaintiff to any impairment of Mr Wilson's ability to drive. "

With regard to the pharmacologist's evidence, His Honour acknowledged her concession that 11% of people with a blood alcohol reading of 0.15 might not be expected to show signs of heavy intoxication. Implicitly, the fact that there was no observation by any witnesses of Wilson exhibiting signs that he lacked balance and coordination or demonstrated slurred speech and clumsy movements, placed him in that exceptional category. Although the Appellant argued that the Plaintiff should have asked a question of Wilson as to whether he was fit to drive, the court held that Wilson's behaviour was not such as to give rise, in a reasonable person, to a concern about that.

Implications In Joslyn v Berryman the defence of contributory negligence was made out and damages were reduced by 60%. In the present case, the Defendant's blood alcohol level was somewhat higher than the Defendant's in Joslyn. The critical distinguishing factor, it seems, is that there was evidence from witnesses of the Defendant being "staggering drunk" whereas here expert evidence to that affect was not corroborated. The Court of Appeal is of the view that, in those circumstances where there is knowledge of only minimal alcohol consumption and no eyewitness accounts of intoxication, there is no obligation to make specific inquiry of a driver as to his actual alcohol consumption or his capacity to drive. The lesson for insurers is that expert evidence based substantially on blood alcohol analysis may not be sufficient to discharge the onus.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Andrew Gorman

Curwoods Lawyers

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95 Pitt Street

Sydney

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