Bellotti v Stair & Anor [2002] QDC 161

DISTRICT COURT OF QUEENSLAND CITATION: Bellotti v Stair & Anor [2002] QDC 161 PARTIES: CHRISTINE FRANCES BELLOTTI Plaintiff -v- RICHARD STAIR Defendant and SUNCORP GENERAL INSURANCE LTD ACN 075 695 966 and RICHARD STAIR Plaintiff -v- CHRISTINE FRANCES BELLOTTI Defendant FILE NO/S: 325/1999 769/2000 DIVISION: Civil Jurisdiction PROCEEDING: Claims ORIGINATING COURT: Southport DELIVERED ON: 19 February 2002 DELIVERED AT: Brisbane HEARING DATE: 3 September 2001, 20 November 2001 JUDGE: Judge Alan Wilson SC ORDER: CATCHWORDS: NEGLIGENCE – MOTOR VEHICLES – PASSENGER’S DUTY OF CARE Dispute as to identity of driver – driver’s alternate claim that, because he was intoxicated, the passenger owed him a duty of care to prevent him from driving. NSW Motor Accidents Act, s. 74 Harper v Adams (1976) VR 44, considered. Akers v P & V (1986) SASR 30, distinguished. Modbury Triangle Shopping v Anzil (2000) 171 ALR 411, followed. COUNSEL: Mr G Radburn and Mr P Woods for the plaintiff Christine Frances Bellotti Mr K Howe for the defendants Stair and Suncorp General Insurance Ltd -- 1 of 16 -- 2 Mr R Grace for the plaintiff Stair Mr RR Bartlett SC for the defendant Bellotti SOLICITORS: Hamilton Quinlan Fenwick for the plaintiff Bellotti Witheriff Nyst for the defendants Stair and Suncorp General Insurance Ltd Bennett & Philp for the plaintiff Stair Hunt & Hunt for the defendant Bellotti [1] These actions, arising out of a single vehicle motor car accident which occurred during the evening of 4 March 1998 outside Muswellbrook, NSW, were heard together. The vehicle was a Subaru Liberty sedan 413 BCI owned by the plaintiff Christine Frances Bellotti, registered in Queensland and insured under the Motor Accident Insurance Act 1994 by Suncorp. She and the other plaintiff, Richard Noel Stair, were the only persons in the vehicle when it left the roadway on Antienne (also known as Hebden) Road, Muswellbrook about 10.30 p.m., and rolled. Each, on the pleadings, claimed the other was the driver at the time and sought damages for his/her injuries. Quantum had been resolved prior to the trial, which proceeded on liability only. [2] The plaintiff Stair pleaded an alternative claim: he alleged that, if he was driving, Ms Bellotti was negligent in permitting, allowing, suffering or requiring him to drive her car when she knew or ought to have known that he was unfit to drive because he was intoxicated or his faculties were, at least, impaired by alcohol consumption. [3] This court has jurisdiction to determine the matter, according to the test postulated by Brennan J. in Breavington v Godleman (1988) 169 CLR 41 at 110 (and, see England v Sotrop (1999) 20 Qld Lawyer Reps R 88); but, it must apply relevant NSW law, i.e. the law of the lex loci delicti; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. All parties submitted the only relevant distinction between -- 2 of 16 -- 3 Queensland and NSW law involved the possible application, and effect, of the NSW Motor Accidents Act 1988, s. 74 which, in certain circumstances, may impose a statutory obligation to reduce an injured plaintiff’s damages for contributory negligence when he/she is a voluntary passenger in a motor vehicle being driven by a person whose capacity is impaired by the consumption of alcohol (and the passenger is, or ought to have been aware of that impairment); and/or if the passenger is not wearing a seatbelt. [4] In addition to the dispute concerning the identity of the driver, and Mr Stair’s alternative claim, the parties were also at odds about a number of other matters: if Ms Bellotti was the passenger, was she wearing her seatbelt? Was she, throughout, a voluntary passenger? And, was either affected by alcohol and, if so, to what extent, and with what effect on the outcome of these actions? [5] Ms Bellotti was born on 20 December 1947 and was, at the time of the accident, employed by the NSW Department of Corrective Services at Muswellbrook as a Probation & Parole Officer. Mr Stair was born on 10 November 1969, and employed as a labourer. They met about two weeks before the accident and, I accept, quickly developed a romantic relationship and spent almost all their off duty time together. He told her he was an ex-convict and subject, at that time, to a community service order. [6] On the day of the accident Ms Bellotti finished work about 4.30 p.m. and immediately drove to premises in Muswellbrook where she met Mr Stair, in company with other men who were building a barbeque. Some of them were drinking stubbies of beer, and others a mixture of bourbon and coke. She says she -- 3 of 16 -- 4 was offered a drink but discovered, on taking a sip of it, that it was a strong mix of bourbon and coke and she “left most of it in the glass”. She describes Mr Stair as being in a “happy mood”. She was at these premises with him, she said, for about 15 minutes after which she drove him, in her vehicle, to a local RSL Club where they had a meal during which, she says, she consumed a glass of wine and Mr Stair had a “middie” of beer. During the journey to the club they had gone to other premises in Muswellbrook (across the road from those at which the barbeque was being built) called “Skelletar House” at which, Ms Bellotti says Mr Stair told her, he had previously performed some work for a friend, Bruce Birnie. They spoke to Mr Birnie briefly and he suggested they return later. They did so after their meal, arriving about 7 p.m. On the way, they purchased a bottle of wine. [7] On their arrival Mr Birnie took them to a table and chairs outside a shed. Ms Bellotti says her seat was dirty and she returned to her vehicle and got a towel and a packet of chips, and came back and put those chips, and her car keys, on the table. Mr Birnie opened her bottle of wine and gave Mr Stair a stubby. They sat, drinking, and watched the sun go down. Later, Ms Bellotti says, she observed some tension between Mr Stair and Mr Birnie and Stair suddenly said “It’s time to make a move”. She gave evidence she said “Well, let’s either walk or catch a cab because we’ve been drinking”. She says Mr Birnie said “Would you like me to call a cab?” Stair said “No, I’ll be right. Don’t worry about it”. Ms Bellotti said “Look, OK, I’ll walk home”. She says Stair then became agitated and said “You’re not going to leave your car in my friend’s driveway”. Then, she says, there was a conversation between Birnie and Stair when they were discussing leaving her vehicle at the service station over the hill, which, they said, was fairly close and she said “No, I don’t want you to drive my car. I don’t want to leave the car there”. Then, Birnie -- 4 of 16 -- 5 said “Well maybe if you just park it out on the footpath” and Stair said words to the effect of “I’m going to drive my lady home”. She says she recalls Stair picking up the keys when he first suggested that it was time to “make a move”. He kept those keys, she says, up to the time of the accident. [8] During the course of her evidence she said that, at Mr Birnie’s home, she had drunk “most of the bottle wine over a couple of hours”. She recalls Mr Stair was drinking beer out of stubbies but, she says, kept no account of how many. [9] Ms Bellotti says she then determined to return to her car because her mobile phone was in it; she says she then opened the passenger side door to get her bag from the floor and remove her telephone, but then remembers nothing at all until she suddenly found herself out in the country, being lifted on to the bonnet of the car. She says she recalls feeling disorientated, and asked Stair where they were. He told her they were in one of his “favourite places”. They then had a conversation, she says, in which he told her that during the visit to Skelletar House, Birnie had been “doing a line” for her. Stair then told her, she says, that he did not care because he had been having a “fling” with Birnie’s wife. She says she thought Stair was not “very rational” and became frightened and, with a view to getting away, told Stair she wanted to go to the toilet and walked off into long grass and kept walking until she eventually crouched down and stayed quiet, “hoping he wouldn’t follow me and that he’d go away”. She says Stair then came after her and said “Come back with me” and when she resisted he grabbed her by the right hand, pulled her against him, and then pulled her towards the car, opened the door and pushed her in. After a further short conversation, she says she told Stair “I want to get out of the car”. He ignored this and started the car and began to drive again, very fast. She put her -- 5 of 16 -- 6 seatbelt on and, shortly afterwards, felt the vehicle veer off the road and, then, pain in her abdomen and “waking up” in the dark. [10] Mr Stair has no recollection of the accident, or of events on the day it occurred and indeed, as I accept, his last memory is of events about a week or so before it. [11] Evidence from several other sources raises doubts about the accuracy of Ms Bellotti’s recollection. One of her fellow workers, Mr Neville, said he had seen Mr Stair driving Ms Bellotti’s vehicle, at a time when he knew Stair was “working off unpaid fines in relation to an unlicensed, uninsured and one other situation” and, says he cautioned her, out of friendship, about allowing Stair to drive “whilst he was in an unlicensed situation”. Ms Bellotti says she does not recall Mr Neville saying this, but only that he told her Stair was “doing a community service order for driving an unregistered vehicle”. (Nevertheless, she says, she later told Mr Stair that she did not want him driving her car because he was performing that order for driving an unregistered vehicle and she imagined, in that case, his licence had been suspended. The day before the accident, she says, he spoke in terms suggesting he was still licensed to drive. Otherwise, she says, she had observed he was a very skilled driver on the one occasion he did drive her vehicle.) [12] A Mr Ferris, who works at a mine outside Muswellbrook, said that sometime after 10 p.m. he was travelling along Antienne Road in his vehicle with his headlights on high beam and some powerful aircraft landing lights also switched on when he saw a vehicle off the road and two people outside it, in a position which led him to believe they were having sexual intercourse. Ms Bellotti denies she and Mr Stair were having intercourse, and says the occasion Mr Ferris observed was that which -- 6 of 16 -- 7 she had described as finding herself, suddenly, on the bonnet, having a conversation with Mr Stair, before running off into the grass, away from the vehicle. Later, after he arrived at work, Mr Ferris learned of the accident and returned to the scene and noted it involved that vehicle, and the same two people. He found Ms Bellotti lying immediately beside the car, and noted her breath smelt of alcohol. He and fellow workers found Mr Stair in a paddock some distance from the vehicle. [13] A suggestion that she remembered nothing between opening the passenger door of her vehicle outside Mr Birnie’s residence, and finding herself in the country being lifted on to the bonnet of the car because she had fallen unconscious was doubted in a report from Dr Lindsay Brown (Exhibit 23), a senior lecturer in the Department of Physiology and Pharmacology at the University of Queensland, who noted that a sample taken from her about three hours after the accident gave a blood alcohol reading of 0.112, and concluded that alcohol levels in her blood at the time of her accident made it “extremely unlikely” that she actually fell into a state of unconsciousness. It is to be noted, however, that although questions in cross examination to her were couched in terms of consciousness/unconsciousness, she never asserted anything more than a loss of memory for a time. [14] In a statutory declaration she signed after the accident (Exhibit 5) Ms Bellotti asserted Mr Stair only ever drove her vehicle on one occasion, and that was the night of the accident. During her oral evidence she admitted this was incorrect, and said he had driven the vehicle on a previous occasion (the one which led to her conversation with Mr Neville). -- 7 of 16 -- 8 [15] Mr Birnie’s version of events occurring at the time Ms Bellotti and Mr Stair left his premises is quite different from hers. He says Ms Bellotti drank a whole bottle of wine, while he and Mr Stair drank beer between about 7 or 7.15 p.m., and 9 p.m. He had to be at work at 5 a.m., and he offered to call them a taxi. Ms Bellotti said she had a mobile phone in the car. He offered, again to call them a taxi because he thought they were both over the legal limit to drive. When he first made the offer one or both of them said words to the effect of “We’re fine, we’ll be OK”. As he stood on a verandah about 20 metres from the vehicle he saw them get into it, Mr Stair on the driver’s side, and he then drove it off, at excessive speed. Mr Birnie’s version did change slightly. In his original statement to police (Exhibit 13) provided on 22 March 1998 he said he had offered to ring a cab because they had both been drinking, and suggested they leave their car at his premises but Stair said “I’ll be fine”. He had a further conversation with them and began to walk back to his house but then turned around and saw them arm in arm and, then, Stair got into the driver’s seat, and Bellotti the passenger seat, and Stair drove off. During examination and cross-examination he said that he remained on the verandah; and added that, at some point, that Ms Bellotti had gone to the vehicle, after saying words to the effect that she would get her mobile phone from it, but returned shortly afterwards without it and sat down and continued to drink before they both left a short time later. He also said that earlier in the evening Stair had accused him of “playing up” to Ms Bellotti and that had caused some tension between them. [16] I do not regard the discrepancies in Mr Birnie’s evidence as anything more than a slight measure of imprecision in recalling events which, by the time of trial, had occurred some years earlier. Against that, Ms Bellotti’s recollection of the events at Mr Birnie’s residence, and later is to be doubted in light of the matters set out -- 8 of 16 -- 9 above. While it is true that her description of the conversation (when she found herself sitting on the vehicle, and Stair raised Birnie’s behaviour towards her) is corroborated by Birnie’s own evidence about what Stair said to him while they were together, her probable approximate blood alcohol content, alleged loss of all memory for a significant period, and the discrepancies between her evidence and that of other, quite independent witnesses and, in particular, Mr Birnie means reliance ought not be placed upon her version. Rather, I am satisfied that, as Mr Birnie says, when she and Mr Stair left his residence they did so on apparently cordial terms; she appeared to enter the passenger seat of the vehicle voluntarily, and Mr Stair then drove the vehicle off; and, there was no conversation between them in which, as she alleges, she told Stair not to drive. [17] I am also satisfied that, at the time of the accident, Mr Stair was driving the vehicle. By the time addresses began at the conclusion of the trial his counsel, Mr Grace, conceded he could not argue against the proposition that, on the balance of probabilities, his client was the driver. The concession was an appropriate one in the face of evidence that Mr Stair subsequently pleaded guilty to a charge of negligent driving; and, that Ms Bellotti had injuries consistent with those which would be caused to a passenger, wearing a seatbelt, in the front (left hand) passenger seat of the vehicle (Exhibit 19). That evidence also establishes Ms Bellotti was wearing a seatbelt, so no issue arises under the NSW Motor Accidents Act 1988, s 74 (2)(c). [18] Section 74 also touches the question whether, in light of the events she alleged occurred near Antienne Road shortly before the accident she was, at the time it happened, a “voluntary” passenger. Ms Bellotti denied in cross examination that -- 9 of 16 -- 10 she felt drowsy or sleepy when she left Mr Birnie’s residence, although she did concede being disorientated. (When I permitted further cross examination of her on the second day of the trial she suggested (transcript, pps 77-78) that a possible explanation for her loss of memory was an injury – a blow around the face or eye – suffered in the accident. No other evidence was advanced to support this theory.) Her version of events shortly prior to the accident certainly suggests her mind was unclear. Although her evidence in chief implied strong force was used by Mr Stair to bring her back to the car and put her in it, she admitted in cross-examination (transcript, p 46) that he simply pulled her back by the hand and, after pushing her into the vehicle, there was then an interval when it was stationary, and they had a conversation during which she said she wanted to get out of the car; yet, she did not attempt to leave the vehicle, and neither did she tell Mr Stair not to drive it. Again, when she related this incident in cross examination, she described herself as “disorientated”. [19] I do not think it is necessary to make a finding whether she and Mr Stair were, in fact, having sexual intercourse when they were observed by Mr Ferris, although I have no reason to doubt his description of their respective physical positions and that it made the inference he drew a reasonable one. Ms Bellotti’s admitted mental condition around this time, and the discrepancies between her evidence and those of others again raises doubt about the quality of her recollection to a degree where, I think, there is no reliable evidence upon which to base a finding that she was, in fact, forced into the vehicle, in a fashion which meant she was physically and/or mentally overborne and which would make her, in the true sense, an involuntary passenger. -- 10 of 16 -- 11 [20] There was no dispute, at trial, on the question whether, if he was driving, Mr Stair’s negligence in the management of the vehicle caused the accident. A police mechanic’s report (Exhibit 16) shows Ms Bellotti’s car had no defects likely to have been causative. It is a straight forward matter, then, to find in Ms Bellotti’s action Mr Stair is liable to her for damages for his negligence. [21] Under s. 74, however, her damages will be reduced “by such percentage as the court thinks just and equitable in the circumstances of the case” even if she was a voluntary passenger and wearing a seatbelt, but was aware or ought to have been aware the driver was affected by alcohol. For the reasons given above I am not persuaded she was not a voluntary passenger (ss 74(2)(b), and (6)), but I accept she was wearing a seatbelt because that is confirmed by independent medical evidence. There is however no police or medical evidence of any measure of the level of alcohol in Mr Stair’s blood, although it is clear he had been consuming beer. When Ms Bellotti first encountered him late that afternoon, at the premises where he was helping build a barbeque, he was drinking and “seemed in a happy mood”. On her evidence, he had at least one drink of beer with her while they ate dinner. Later, she said when they first met that evening he was “slightly affected by alcohol” but “he didn’t appear to very intoxicated. He just appeared to be happy”. As noted earlier, she did not keep count of the drinks he had at Mr Birnie’s residence, although she assumed he had been drinking the whole time. She agreed that she was “affected” by the alcohol she consumed there, more than him. At p 57 of the transcript: “Mr Howe: And did you address your mind to whether he was fit to drive because of the amount of alcohol? – No, I just addressed my mind that he had been drinking and that I didn’t allow him to drive my car Mr Howe: Because of the amount of alcohol he’d consumed? – Because he had been drinking” -- 11 of 16 -- 12 [22] Mr Birnie could only recall that he and Mr Stair had drunk some stubbies of beer and he was himself careful, because his employer conducted random alcohol breath tests, and he could not have a reading of over .02 by 5 a.m. the next day. He was not pressed to estimate how many beers Mr Stair drank, but ventured his opinion that both his visitors were over the limit to drive, legally, (transcript, p 88) and, at the highest, said they were “unfit to drive” (p 89), although that answer was qualified in a way which suggested this unfitness was measured by reference to legal alcohol limits for drivers, rather than physical or mental condition. [23] The question arising under s. 74(2)(b)(ii) is whether or not the driver’s ability to drive the motor vehicle was “impaired as a consequence of the consumption of alcohol ... and the injured person ... was aware, or ought to have been aware of the impairment”. None of this evidence establishes, in my view, on the balance of probabilities that Mr Stair’s ability to drive the motor vehicle was necessarily impaired. It was, possibly, affected, but there is nothing to show the effects constituted impairment. An inference is raised, but it remains no more than a bare possibility (see, e.g. Keach v Keach’s Minimix Pty Ltd, unreported (NSW Supreme Court, Loveday J, 10 April 1992). While I accept that Ms Bellotti’s own consumption of alcohol would never relieve or excuse her if it could be established she had willingly (albeit under the affects of alcohol) ridden in a motor vehicle driven by somebody whose faculties were impaired by alcohol consumption (Morton v Knight (1992) Qd R 419), in the absence of reliable evidence establishing the probability of impairment on Mr Stair’s part, her intoxication is nothing more than a part of the matrix of surrounding circumstances, but not one touching her entitlement to damages as a consequence of his negligence. -- 12 of 16 -- 13 [24] In Mr Stair’s action, the concession that he was the driver meant submissions on his behalf were directed entirely to the alternative proposition that, in the circumstances of this accident, he was owed a duty of care by Ms Bellotti, which she breached. The duty was stated, variously, as one which arose if she was or ought to have been aware that he was affected by alcohol and charged her, in those circumstances, not to allow him to drive her car; and/or as the owner and therefore the person with a right of control over a vehicle, not to direct or permit him to drive it; and/or, where she was older than him, and a parole officer (and he was an ex convict and, perhaps, an unlicensed driver) to exercise control so as to forbid him to drive. These submissions were argued by reference to a welter of cases most of which did no more than reiterate the well known principle that the owner of a vehicle may, in certain circumstances, be liable for the negligence of its operator: e.g., Samson v Aitchison (1912) AC 844. Among those mentioned were, however, several which showed that, in particular factual situations, persons in authority might be liable not only to third parties for the operator’s negligence but, also, to the operator himself, if he is injured. In Harper v Adams (1976) VR 44 the appellant, a boy aged 14 ½, suffered injuries when a car in which he was seated ran off the road and collided with trees. Although much of the case was concerned, as here, with the actual identity of the driver (and whether or not it was the appellant himself) Lush J acknowledged at p.57, that the appellant’s age and inexperience and the fact that he had been given alcohol by the defendant might put the latter, as the owner of the car, under a duty either to refuse to allow him to drive or to closely supervise that driving. More vividly, in Akers v P & V (1986) SASR 30 two police officers were called to intervene in a domestic dispute and directed a man involved in the dispute, who had ridden to the premises on a motor cycle, to ride that motor cycle away. The trial judge found that at the time the direction was given this man was clearly -- 13 of 16 -- 14 under the influence of alcohol, and his faculties so obviously impaired that he was not in a fit condition to ride, and it was that impairment which caused the accident in which he was subsequently injured. Olsson J, unsurprisingly, held that the two officers were liable to him in damages for those injuries. [25] As to the issue of authority or control Mr Stair was not, however, on parole when he met Ms Bellotti, and she was not in any position of power or influence over him save that which might arise as a consequence of their romantic relationship: Transcript, p.23. A further difficulty which confronts Mr Stair is the paucity of evidence as to how he came to be the driver of the vehicle. Certainly, there is no evidence he was ever directed to drive by Ms Bellotti. Mr Birnie says they simply went to the vehicle, but nothing as to how it came to be that Mr Stair entered the driver’s seat, and Ms Bellotti the passenger’s. Nothing can be said to give rise to an inference some direction was given, or control exercised over Mr Stair by Ms Bellotti. Even if my failure to accept parts of Ms Bellotti’s version is incorrect, nothing in what she says about events at Birnie’s home, or later near Antienne Road implies anything other than that Mr Stair determined, himself, to drive the vehicle regardless of her wishes. It follows that, on any view, he is confronted by an absence of evidence, or evidence which is adverse. [26] He is left then with the submission that, as the owner, Ms Bellotti owed him a positive duty of care not to allow him to drive, because his faculties were impaired or affected by alcohol. None of the authorities to which Mr Stair’s counsel referred me went so far as to establish a duty of care on the part of an owner/passenger vis a vis a driver like Mr Stair who, without instruction or direction from the owner (albeit probably with her tacit permission, or consent) elects to drive a vehicle; or, -- 14 of 16 -- 15 comes to do so in imprecise circumstances none of which, however, would give rise to an inference the driving was a consequence of the owner’s exercise of some measure of power or control over the driver, or her instruction, or direction. Nothing arises from the relationship between Ms Bellotti and Mr Stair here which may attract some clear duty on the part of one to control the conduct of the other, a matter discussed in two cases considered recently by the High Court in Modbury Triangle Shopping v Anzil (2000) 171 ALR 411: i.e., Smith v Leurs (1945) 70 CLR 256 (per Dixon J at 262), and Home Office v Dorset Yacht Co Ltd (1970) AC 1004; but, as the judgments of, in particular, Gleeson CJ, and Hayne and Callinan JJ in Modbury show, the fact that an event occurs in circumstances where one party may have the capacity to assume responsibility for the conduct of a person, does not mean that person necessarily assumed an obligation to care for the other. As Gleeson CJ said (at 417-8): “As Brennan J pointed out in Sutherland Shire Council v Heyman, the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable.” [27] Arguably, too, a party relying on circumstances said to give rise to a duty of that kind would also need to establish that, had an instruction been given, it would have been obeyed. Mr Stair’s case is bereft, or course, of any evidence on that aspect. [28] Nothing in the facts of this case, as I have found them (or, indeed, as may arise from those parts of Ms Bellotti’s evidence I have chosen not to accept) could be said to give rise to a legal duty, on her part, to prevent Mr Stair driving. Nor is there any evidence suggesting some aspect of the relationship between them took it out of the ordinary class of relationship between driver and passenger. Mr Stair’s own claim must, for these reasons, fail. -- 15 of 16 -- 16 [29] In Ms Bellotti’s action, then, I find the defendants liable for her damages; and, that those damages are not reduced for contributory negligence. Mr Stair’s action is dismissed. -- 16 of 16 --