Written by Peter CarterMay 27, 2013
A late-night reveller was the victim of her own ill-judgment when she accepted a ride on the back of a motor-cycle from Brisbane’s Sofitel lobby bar before being spilled onto the bitumen at the southbound entrance to Brisbane’s Story Bridge.
So contended CTP insurer, Suncorp – in relation to graphic designer and sex worker Sally-Ann Robbins – arguing her contributory negligence was so extensive, any injury compensation award from the rider’s negligence, should be reduced to zero.
Brisbane’s Supreme Court heard Robbins had “a few southern comforts” at a friend’s home before they arrived at about 11 pm. There she had 6 -7 drinks and met the admittedly at-fault rider with whom it was decided she would ride pillion to Woolloongabba’s Chalk Hotel, to see where the night would take them.
Approaching the bridge leaning into a curve at high speed, sparks leapt from the right exhaust as it scraped the bitumen. Unable to straighten, the bike hit the median strip and both occupants were hurled tumbling along the roadway.
The rider’s blood work revealed a BAC of .134% and notwithstanding bystander testimony that he “smelt like a bar mat”, Robbins claimed that first defendant John Skouboudis had given every appearance of being unaffected by alcohol when she took up his offer.
Disputed also was the extent of her own inebriation, she claiming merely to have been “happy”. But aided by accounts from Princess Alexandra Hospital personnel and a recorded BAC of 0.18%, the court was satisfied for Civil Liability Act purposes, “intoxication” had been made out.
Robbins commenced personal injury compensation proceedings in March 2012 with the aid of a lawyer, but shortly after she was self-represented and conducted the five-day trial in person. His Honour was satisfied that by operation of CLA sections 48, 47 and 49 he was obliged to apply a minimum 50% reduction to any assessed damages but was not convinced by the Suncorp argument that damages should be reduced by 100%, to nil.
Partly because “there was nothing to suggest that the plaintiff contemplated travelling with the first defendant until the time he offered to take her”, no greater proportion of contributory negligence was recorded.
Serious injuries certainly, but Robbins’ credibility “was severely damaged” in that she had “misreported her history to the various doctors who examined her” and was to be disbelieved – so held the court – unless supported by corroborating evidence.
Her injuries included a pneumothorax; ruptured spleen, pancreas and kidney; pelvic fractures; concussion and a transverse L5 spinal fracture. She also sustained scarring to her face, knees and abdomen and for all that, general damages were assessed at just $18,000.
Her loss of income claim was undermined by the fact that she had declared income for the 2007 year of only $2800 and future occupational incapacity was contradicted by evidence of having performed at least 16 shifts at Gabba nightspot, Cleo’s on the Nile, over a three month period in the year following the accident.
In the end, the court was satisfied that the injuries did reduce earning capacity but in the absence of any reliable evidence to prove its extent, the amount allowed was just $15,000 for the years up to trial and $175/week into the future, discounted out to $110,000.
The total damages were assessed at $240,000 which on a 50% contributory negligence apportionment, resulted in a judgment in her favour against Suncorp, in the sum of $120,000.