Insurance

French v. QBE Insurance (Australia) Limited & Others [2011] QSC 105 (13 May 2011)

This recent Supreme Court of Queensland decision highlights how a taxi driver might in some circumstances be liable for injuries suffered by a drunk passenger after exiting a taxi.

Mr Crouch had been drinking at a party and was heavily intoxicated. Two of the partygoers escorted him into a taxi driven by Mr Earea. They told the taxi driver Mr Crouch’s address and told him take Mr Crouch home safely.

The taxi driver went to the correct street but pulled up outside the wrong house. After unsuccessfully trying to wake Mr Crouch, the taxi driver knocked on the door and spoke with a person who denied knowing Mr Crouch. The taxi driver then called the police. After waiting 10 minutes, he opened the taxi door and let Mr Crouch fall onto the grass. He then searched his pockets and took his mobile phone before driving away.

Mr Crouch later wandered onto a roadway and died as a result of injuries suffered in two separate collisions. The first collision involved an unidentified vehicle that hit and dragged him some distance along the roadway. The second collision involved a car driven by Mr Shamon hitting Mr Crouch’s body lying on the roadway.

Mr Crouch’s de facto wife, Ms French, instituted proceedings in the Supreme Court, seeking damages for herself and their children. The claims were brought against the taxi company, the taxi driver’s insurer, Mr Shamon and his insurer (RACQ Insurance) and the Nominal Defendant (for the unidentified driver).

Each of the defendants acknowledged that they owed a duty of care to Mr Crouch, but denied liability and challenged the amounts claimed.

Breach of Duty

A key issue was what the taxi driver should have done to discharge his duty of care to Mr Crouch.

The Court held that it included delivering him to a ‘place of safety or to another person who would look after him’ and confirming and recording the address given to him at the commencement of the journey.

Mr Crouch was incapacitated and it did not matter that the intoxication causing that incapacity was voluntary. Because the taxi driver had knowledge of the incapacity and had accepted the fare, he owed an even higher standard of care than usual towards Mr Crouch for his safety.

The Court concluded that the taxi driver had breached his duty of care. He had left Mr Crouch on the side of the road where it was foreseeable that Mr Crouch was at risk of injury and where it was reasonable for the taxi driver to have confirmed and recorded the correct address in the first place, or at least to have waited for police to arrive.

The parties agreed that there was also a contract between the taxi driver and his passenger. On this basis the Court held that it was an express term of this contract that the driver would take his passenger to the correct address, safely. This term was breached.

The taxi company only served as a booking agency and was not liable for the actions of the taxi driver. The taxi driver shared his liability with the unknown driver, apportioned 80/20 against the taxi driver. Mr Shamon escaped liability on the basis that the Court could not conclude whether his actions had caused or contributed to Mr Crouch’s death.

Contributory Negligence

The defendants alleged that Mr Crouch had caused or contributed to his own death and any damages awarded should be reduced.

The Court did not find any contributory negligence had been proved:

1. The breach of the express term to take Mr Crouch safely home was not a breach of a contractual “duty of care” concurrent and co-extensive with a duty in tort, so the legislation concerning contributory negligence did not apply.

2. The presumption of contributory negligence where a person is intoxicated (section 47 of the CLA) was rebutted by evidence that Mr Crouch’s intoxication had no connection with the breach of duty of either the taxi or unknown driver.

3. Mr Crouch did not fail to take reasonable care for the purposes of sections 5 and 10 of the Law Reform Act 1995 as:
   (a) it was not a reasonably foreseeable consequence of getting drunk at a party that Mr Crouch would be ‘walking the streets incapacitated by alcohol’; and
   (b) Mr Crouch did not have sufficient control over himself to be able to exercise his will and know what he was doing.

The Court awarded damages of $762,350, with Ms French receiving over half and the rest being distributed between each of the dependent children.

The Court said, ‘Taxi drivers perform an important social role in relation to inebriated persons, a role which must carry with it some responsibility for such persons.’  A taxi driver who voluntarily assumes responsibility for taking an inebriated person to a certain address should take all reasonable steps to do so, and should not simply unload a passenger other than to the address directed and drive off.

For further information on this alert please contact Priya Panwar via priya.panwar@cgw.com.au  or any member of the Cooper Grace Ward Insurance team.

Insight Vacations Pty Ltd -v- Young 2011 HCA 16 (11 May 2011)

This recent High Court decision shows that care is needed when drafting an exclusion clause so that the circumstances in which it applies are not defined too narrowly. Otherwise, it may work against the party seeking to rely on the clause.

Mrs Young purchased a European coach-tour package from Insight Vacations (Insight). Mrs Young was injured whilst on tour. She was standing in the tour bus when it braked suddenly.

Mrs Young commenced proceedings in New South Wales on the basis that it was an implied term of her contract that the services supplied would be rendered with due care and skill. This had not occurred and, as a result, she had been injured.

Mrs Young succeeded at trial and was awarded damages of $22,371 with costs. Insight appealed to the Court of Appeal of the Supreme Court of New South Wales, successfully reducing the damages awarded to $11,500, but its appeal on liability was dismissed. By way of special leave, Insight appealed to the High Court.

It was not disputed that section 74(1) of the former Trade Practices Act 1974 (Cth) (TPA) implied a term that the supply of the coach tour services be rendered with due care and skill.  

However, Insight argued that:

1. Section 74(1) TPA was subject to section 5N of the Civil Liability Act (NSW) (CLA) (there is no equivalent Queensland provision), which excludes liability for breaches of contract in connection with “recreation services”. Leaving aside whether the tour package was a supply of “recreation services”, the court found that section 5N of the CLA did not apply because the supply of services was wholly outside New South Wales, which meant the CLA could not apply.
2. The following exemption clause in its contract with Mrs Young applied:

Where the passenger occupies a motorcoach seat fitted with a safety belt, neither the operators nor their agents or cooperating organisations will be liable for any injury, illness or death or for any damages or claims whatsoever arising from any accident or incident, if the safety belt is not being worn at the time of such accident or incident. ” (our emphasis)

Mrs Young was travelling on a coach that had a safety belt, but the High Court held the exemption clause did not apply and Insight was therefore liable for her injuries. By using the word “seat” with reference to when the exemption applied, Insight had limited the exclusion only to situations where the passenger was seated. Had Insight worded their exemption clause so that it was not so narrow, for example by removing the word “seat”, then the exemption may have applied to exclude liability for injuries whenever the passengers were on (“or aboard”) a motorcoach fitted with a safety belt.

While it is important that an exclusion clause avoids ambiguity by being clearly expressed, this case shows how being too specific may limit liability farther than intended.

For further information please contact Cooper Grace Ward team members Priya Panwar, Gillian Bristow or Brady Cockburn.