MVA: As bad as each other – 50/50 split & reduction for BAC 0.058

Smith v Randall & Anor [2016] QSC 191

Applegarth J

The subject accident occurred in 2013 when Mr Randall, driving a utility along a highway consisting of one lane each way, attempted to turn right across a broken centre dividing line into a driveway. Mr Smith, who had been travelling behind Mr Randall in a truck noticed the utility slowing down but it did not display any turning indicators. Assuming the utility was either broken down, travelling slowly or at a stop, the truck attempted to overtake the utility at which point the utility turned right across the adjacent lane into the path of the oncoming truck. Both drivers suffered personal injuries and claimed that the negligence of the other driver caused the accident. Particularly, each party alleged contributory negligence.

Ultimately, Applegarth J found that each driver was equally liable for the accident, with contributory negligence assessed at 50% for each driver. His Honour said:


[61] Mr Randall and Mr Smith owed duties to each other to take reasonable care in the control of their respective vehicles so as to prevent harm to the other.  The risk of harm was foreseeable, not insignificant and, in the circumstances, a reasonable person in the position of the driver would have taken precautions. If precautions were not taken, then there was a possibility that serious harm to another road user would be caused.  The precautions required to avoid harm were not burdensome.

Failure to activate the indicator and intoxication

Central to His Honour’s finding that Mr Randall was contributorily negligent was his failure to activate his indicator when turning right into the driveway and driving without due care and attention. His Honour said:


[32] Importantly, if the indicator had been activated so as to signal Mr Randall’s intention to turn right, then it is highly improbable that Mr Smith would have chosen to overtake the utility on its right side.  If, having failed to slow to an appropriate speed, he was not able to stop behind the utility or slow to its speed, the option existed for him to pass it on its left.

[34] If Mr Randall had indicated, then Mr Smith would have slowed and travelled behind the utility or passed on its left.  Instead, he tried to pass on its right, just as the utility began to turn into his path.

[35] If Mr Randall had looked in his rear view mirror or side view mirror during the time the utility travelled over the several hundred metres to the point where he intended to turn right, then he would have seen the truck’s headlights.  If he had kept a regular view in his rear view mirror, he would have noticed that the truck was gaining on him.

As to intoxication while driving, Applegarth J said:

[52] The Civil Liability Act defines the term “intoxicated” to mean when “the person is under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired.”[2]

[53] Notably, the definition does not use the term “substantially impaired”. The Act does not presume or deem a person’s capacity to exercise proper care and skill to be impaired in circumstances in which the person has, for example, a blood alcohol level of 0.05 percent or more.

[54] Whether or not a person is under the influence of alcohol “to the extent that the person’s capacity to exercise proper care and skill is impaired” depends upon all the circumstances of the case, not simply on a blood alcohol level. For example, it is possible to imagine a case in which a sleep-deprived driver, who has taken no stimulants such as caffeine, has a relatively low blood alcohol level but the effect of the alcohol is to slow his or her reactions to a state in which the driver is not able to react fast enough and cannot exercise proper care and skill. By contrast, another driver with the same blood alcohol level, but who is well-rested and stimulated by coffee, may have a slowed reaction speed due to the presence of alcohol but still be able to react quickly enough to exercise proper care and skill.

[55] In such a case, the person may be under the influence of alcohol but not to the extent that his or her capacity to exercise proper care and skill is “impaired”. The presence and influence of alcohol is not enough, on its own, to render that capacity “impaired”. Were it otherwise, any driver with a small amount of alcohol in their system would be taken to be “intoxicated”. That should not be assumed to be the legislative intention in the absence of clear words to that effect. Instead, the concentration of alcohol is an important factor in determining the influence of the alcohol upon the driver in question. The extent of the influence depends on all the circumstances, including whether the driver is alert or tired due to other factors.

[56] This is not a case in which a driver arose after a good night’s sleep, sober and drank a few glasses of wine at lunch, followed by a few coffees by way of stimulation. Mr Randall was under the influence of alcohol as a result of drinking too much the night before. He was still under the influence of alcohol at 5.00 am. The police notebook records him saying that he had been drinking until 9.30 – 10.00 pm. My adverse view about his credibility and reliability lead me to reject his evidence that he drank between four and six standard nips of whisky on the Sunday at a barbeque that went between noon and about 8.00 or 9.00 pm. There is no explanation or evidence as to how his blood alcohol level, evidenced by the roadside breath test and the blood sample the next morning, would be at those levels if he had consumed only that number of drinks the previous evening. Incidentally, he told police at the accident scene that he could not remember exactly how many Canadian Clubs he had at the barbeque the night before. Mr Randall’s unreliable recollection of events does not permit me to make any confident finding about when he stopped drinking and when he went to sleep on the Sunday night. He told the police that he got up at 3.50 am. The police were able to smell alcohol on his breath.

[57] This is not a case in which an alert driver recorded a roadside breath test reading of 0.058 a short time after drinking. Mr Randall was hungover. The police notebook seems to record him saying that he was maybe a “bit sleepy”. Whilst he denied saying this to police, in his evidence he said instead that he was “drowsy”. He did not say to police that he was a bit sleepy or drowsy because he had only had a few hours sleep. I conclude that Mr Randall was “drowsy” (to use the expression he used before seeking to retreat from it) because he had drunk to excess the night before. At the time of the accident he was recovering from the previous night’s drinking and was still under the influence of alcohol. He was tired. He was under the influence of alcohol to an extent that impaired his capacity to exercise proper care and skill.

[58] The influence of alcohol contributed to the accident. It was causative in the sense that it contributed to his failure to indicate an intention to turn right and his failure to drive with due care and attention, including a failure to look in a rear view mirror when he was close to his destination and intending to turn.

[59] If Mr Randall looked in his rear view mirrors at all, then it was probably only at the last second, just as he began to effect the turn, perhaps alerted by the horn which Mr Smith sounded as he was overtaking. If Mr Randall had looked in his mirrors earlier, then he would have seen a truck approaching and closing on him. This probably would have prompted him to activate his indicator. If he falsely assumed for some reason that the indicator was already on it would have prompted him to check whether the indicator had earlier been activated. He also might have activated his brake lights quickly a few times to signal to the driver that he was both slowing and intending to turn right.

[60] Because Mr Randall suffered harm and was “intoxicated” within the meaning of the Civil Liability Act at the time of Mr Smith’s alleged breach of duty giving rise to Mr Randall’s claim for damages, and contributory negligence is alleged against Mr Randall, contributory negligence is presumed, subject to s 47(3). Mr Randall has not rebutted the presumption of contributory negligence by establishing on the balance of probabilities that his intoxication did not contribute to the alleged breaches of duty. Instead, I find that his intoxication did. His intoxication contributed to his failure to indicate an intention to turn right and his failure to drive with due care and attention and to keep a proper lookout. These breaches, in turn, led Mr Smith to attempt to overtake the utility instead of slowing behind it and permitting it to effect the signalled turn.

In assessing Mr Smith’s culpability for the accident, His Honour commented that Mr Smith should have slowed behind the utility to assess the other driver’s intentions before committing to the overtake manoeuvre. Further, His Honour said:


[71] [Mr Smith] should have rapidly decelerated when he realised that the utility was moving to the centre line of the road and that he was gaining on it.  Even if he was about 100 metres away from the utility when he realised there was a problem, he had sufficient time to slow his truck by braking without undertaking a dangerous braking procedure.  There was sufficient time to slow.  Instead, without having a reasonable basis to conclude that the utility was turning left (given the lack of any indication, the vehicle’s slow speed and its position on the road) and in circumstances in which there was a substantial risk that the utility might turn right without indicating, Mr Smith overtook it on its right side at a reasonably high speed.


As to apportionment, His Honour restated authorities from earlier decisions stating:


[74] The driver of the following vehicle is in a better position than the leader to observe certain matters. However, one must not over-emphasise the responsibility of the following driver or the importance of that driver’s opportunity to avoid the risk created by the carelessness of another. (footnotes omitted)


Ultimately, both drivers were found to be equally liable for the accident, assessed at 50% each.


David Cormack – Brisbane Barrister & Mediator

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