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Written by Peter Carter

May 19, 2011

A landmark judgment that traverses multiple aspects of the law of negligence this week delivered more than $760,000 to a Gold Coast social worker following her intoxicated partner’s dumping out of the back door of a Regent Taxi in Ashmore in 2003.
In a 76 page treatise on the standard of care, breach of duty, causation and remoteness in the style of Wagon Mound, Justice Fryberg had to rule on the civil responsibility for the death of Stephen Crouch, a house painter who – after fours, hours at a Saturday evening barbecue at Southport – had been bundled into a taxi, with instructions from bystanders to the driver to deliver him safely home. He was found dying on a road about two hours later.

The taxi driver – who relied on his memory rather than writing down the address – drove him the short 10 min distance not to number 37 (his home) but to 27, Yangoora Crescent where the startled female occupier disclaimed any association.

“Base” requested police assistance – but when it did not arrive after 10 min – the driver rolled Crouch out of the back door of the cab onto the footpath, asleep.  From there he wandered around the locality until he was run over first by an unidentified vehicle and secondly by a 19-year-old who was carelessly driving his Camray with one headlight out. He died at the scene following the second collision.

The widow, Elizabeth French, sued the nominal defendant (in respect of the unidentified driver), the taxi driver, the taxi company, and the 19-year-old plus his CTP insurer.

The plaintiff failed in her claim against last two parties: although the second driver breached his duty to the still alive Mr Crouch by running him over, that accident – because it could not be established what parts of his body had been hit by the Camray – could not be proven to have contributed to his ultimate death.

The plaintiff also failed in the claim against the taxi company with the court holding that no breach of duty had been established. She succeeded however in her claim against the unidentified driver and the taxi driver’s business insurer, QBE.

That driver was held to have owed Mr Crouch a duty in tort and in the contract as ‘carrier’, to have delivered him home safely and in the circumstances that arose, to remain with him at least until the police arrived. The standard of care the driver was required to observe was to be “responsible for delivering Mr Crouch to a place of safety or to another person who would look after him.”

The taxi driver “ought reasonably to have known that if you failed to deliver Mr Crouch to his home or otherwise to a situation of safety, but left him lying on the footpath, there was a risk that he would wake up, wander onto the carriageway and be hit by a vehicle”.

Drawing a distinction between what had occurred and a plain “failure to rescue”, his honour observed that the driver “was more akin to that of those who left their victim for dead on the side of the road to Jericho than to that of those who passed by the other side”.

QBE accepted liability for its insured driver – who himself had died before the trial last May – as it was obliged to do under s51 of the Insurance Contracts Act. There was no claim against the taxi driver’s CTP insurer notwithstanding that unsafely discharging a drunk passenger asleep on the side of the road might arguably have resulted in an injury that was “as a result of the driving of a motor vehicle” and therefore within s5 of the Motor Accident Insurance Act.

The unidentified driver was also liable – not in respect of his collision with Crouch the details of which couldn’t be proven – but because he too abandoned Crouch to the risk of further injury. The driver ought to have appreciated that he had hit something on the road and should have investigated. Such action, had it occurred, would likely have removed Mr Crouch from the carriageway and the risk of further injury.

According to his honour, the unidentified driver “created or at least gravely aggravated the hazard to which Mr Crouch was exposed. He owed Mr Crouch a duty to exercise reasonable care to prevent further injury from oncoming vehicles.”

This claim was not defeated by s46 of the CLA because – so said the court – the standard of care had to be measured according to the incapacity of the passenger. Such incapacity “might equally have been due to some other condition” and thus should not be reduced “simply because …it was a consequence of voluntary intoxication.”

Further, s47 of the CLA did not operate to reduce the widow’s damages by reason of her spouse’s contributory negligence. The provisions of s10 of the Law Reform Act prevailed and although it was open to the court to hold the deceased liable for contributory negligence, his honour found that it could not be established:  voluntary intoxication was of itself insufficient proof.

The total loss of dependency to the widow and four children was assessed at $762,350 and judgment was entered in the plaintiff’s favour in that sum.

Liability was apportioned between the nominal defendant as to 20% and QBE, for the taxi driver, as to 80%.

French v QBE Insurance (Australia) Limited & Ors [2011] QSC 105 Fryberg J published 17/05/2011

Categories: Personal Injury , Litigation & Law Practice

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