It pays to be observant

20 February 2008 Topics: Insurance

Hawira -v- Connolly & Anor; Connolly -v- Hawira & Anor [2008] QSC 004

Date of Judgment: 30 January 2008

This is a recent decision of Justice Daubney of the Supreme Court of Queensland concerning assessment of damages pursuant to the Civil Liability Act 2003 (Qld) [CLA] focussing on contributory negligence for failure to wear a seatbelt and intoxication of the parties.

Background

The plaintiff was the passenger in a single vehicle accident.

The parties had spent the afternoon conducting some business at a local hotel. It was not in dispute that at least four jugs of beer in total had been shared over the course of the afternoon. The couple argued during the journey, with the defendant trying to lay blame for the accident for actions of the plaintiff in the vehicle. This line of argument failed.

At trial

Seatbelt

The court considered that on balance it was persuaded that the plaintiff was unrestrained at the time of the accident and contributory negligence of 16% was apportioned against him.

Intoxication

Each party tried to estimate their own alcohol consumption and that of the other party before departure.

His Honour considered it “artificial in the extreme to expect either of them to have kept track of precisely how much each of them was drinking. Their respective states of sobriety at the time of the leaving the hotel was unreliable.”

The defendant’s blood alcohol concentration [BAC] two hours following the accident was 0.119%. Evidence was led that the defendant’s BAC would have been in the range of 0.1395 to 0.1805 at the time of the accident.

Daubney J considered both parties intoxicated within the meaning of that term in the CLA. Therefore, the operation of each of ss47 and 48 of the CLA was called into play.

The plaintiff was unable to rebut the presumption of contributory negligence. Further, the Court was satisfied that the defendant was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle leading to the operation
of s49.

This meant that the minimum reduction for contributory negligence was 50%.

In total, the plaintiff’s damages were reduced by 66%.

Conclusion

This case turns on its own facts but shows that the Court will look to much more than a self assessment of sobriety in determining the level of intoxication of a party. The Court is willing to derive assistance from observations made by professionals shortly after the time of the accident.

Where there is a suspicion of alcohol and/or drugs involved in a motor vehicle accident, it is important for timely factual investigations to be carried out with persons who attended at the accident scene or treated the party shortly after. Statements and records from the police officers in attendance, ambulance paramedics and hospital staff can be invaluable to determine the issue of intoxication.

Expert opinion of a clinical forensic medical officer to extrapolate on a blood alcohol concentration reading can also be useful.

For insurers this is money well spent.

If you have any queries regarding this issue or would like to discuss any other matters related to insurance law, please feel free a member of our Insurance team on 07 3231 2444.

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