Fraser JA with whom Ann Lyons J and Marin J concurred, upheld the insurer’s appeal and set aside the finding of 40% for 60% contributory negligence occasioned by being intoxicated and stepping into the path of an oncoming car.
 Because the plaintiff was “intoxicated” (as that term is defined in the Civil Liability Act 2003 (Qld)) and failed to establish that his intoxication was not self-induced or did not contribute to the accident, the starting point for the reduction of his damages on account of contributory negligence was a minimum of 25 per cent.
 The trial judge referred also to other grounds for holding that the plaintiff was guilty of contributory negligence: he failed to take reasonable care for his own safety in that he did not walk on the footpath provided, he did not walk on the right hand side of the road facing oncoming traffic, and he took a step into the path of the first defendant’s car when he knew it was approaching. After referring to observations in High Court decisions that the driver of a motor vehicle has greater capacity to cause damage than a pedestrian on the road, the trial judge observed, citing Edwards v Nominal Defendant, Teubner v Humble, and Pennington v Norris that “[t]he driver should therefore bear greater responsibility where the driver causes injury to a pedestrian”. Her Honour gave the following additional reasons for concluding that the plaintiff’s damages should be reduced by 40 per cent on account of his contributory negligence:
“In the present case, the plaintiff made a conscious and logically sound choice to walk on the left side of the road in the same direction as the traffic and on the side without a footpath when one was available on the other side. The plaintiff chose to do so, not because he was intoxicated but because he wished to hitchhike home. He made a decision not to ride his bicycle because he had been drinking. He did not want to spend money on a taxi. He had a 6 kilometre distance to walk late at night. He was not so intoxicated that he could not walk. He had already walked approximately two kilometres in good time. He kept to the side of the road except for the one step. This does not involve the grave degree of culpability seen in the cases referred to by Mr Feely.
The step to the right by the plaintiff was either inadvertent, or a momentary misjudgement of where in relation to the fog line he was standing when he turned to face the first defendant’s vehicle. This reduces somewhat the significance of his contributory negligence.”
 The insurer argued that the trial judge’s conclusion that there was no rational justification for the plaintiff to step onto the road, other than that he was intoxicated and that his judgement was therefore impaired, falsified her Honour’s conclusion that the significance of the plaintiff’s contributory negligence was reduced by the fact that his step on to the road was either inadvertent or a momentary misjudgement. It was of particular significance that the plaintiff stepped on to the road directly into the path of the first defendant’s car; that was the primary cause of the accident. The insurer argued that the trial judge failed to attribute sufficient weight to the limited opportunity for the first defendant to observe the plaintiff and take effective action to avoid the collision, and that the plaintiff’s culpability was greater and his conduct was of more significance than that of the first defendant in causing the collision.
 The plaintiff argued that the trial judge’s reasons justified the apportionment. The Court was reminded of the hurdle faced by an appellant who seeks to challenge a finding of this kind:
“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’: British Fame (Owners) v Macgregor (Owners)  A.C. 197 at 201. Such a finding, if made by a judge, is not lightly reviewed. …
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris  HCA 26; (1956) 96 C.L.R. 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd  UKHL 4;  A.C. 663 at 682; Smith v. McIntyre  Tas.S.R. 36 at 42-49 and Broadhurst v. Millman  VicRp 15;  V.R. 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
 Even so, this is one of the relatively rare cases in which there is a sufficient ground for setting aside a trial judge’s apportionment. All other things being equal, a driver of a car should ordinarily bear the lion’s share of the responsibility where the driver’s negligence results in injury to a pedestrian whose negligence contributes to the collision, because the driver has a far greater capacity to cause damage than the pedestrian. In this case, however, all other things were far from being equal. It was the plaintiff’s conduct in standing very close to the edge of the left lane in a relatively dark area at night which initially created the danger. The first defendant’s only fault was in failing to avoid that danger by keeping a proper lookout and slowing down or deviating. In addition to creating the initial danger, the plaintiff also precipitated the collision by stepping onto the roadway in circumstances in which he knew that a car was approaching. That was inadvertent conduct but it was presumably contributed to by his “intoxication”.
 The plaintiff’s conduct was so markedly more culpable than that of the first defendant, that the trial judge’s apportionment must involve error, even taking into account the far greater capacity for the first defendant to cause damage by negligent driving. Essentially for the reasons advanced by the insurer, the apportionment should have been made in its favour. The trial judge’s apportionment should be set aside.
 The insurer referred to cases in which particular apportionments were made, but the circumstances were so different as to render those cases of no real assistance. On the facts of this case I consider that the plaintiff should bear 60 per cent of the responsibility.
Brisbane Barrister – David Cormack