The recent District Court decision of McLean v Nominal Defendant [2012] QDC 73 handed down by Judge McGill has highlighted the perils of simply relying on section 47 of the Civil Liability Act 2003 (the “Act”) when alleging contributory negligence.

Section 47 places the onus on the Plaintiff to rebut the presumption of contributory negligence when they suffer harm whilst intoxicated.  In the matter of McLean, the Plaintiff had been on an overnight drinking “binge” at a friend’s house.  The specifics of the following morning’s events were in dispute.  It was accepted that the claimant continued to drink alcohol.

At some point in time, he decided to walk from his friend’s place to his sister’s place, which was in close proximity.  It was during this walk, that he was crossing the road at an unmarked pedestrian crossing (at a roundabout) when he was struck by an unidentified vehicle.  He suffered fractures and crush injuries to both his feet.  The Court found these injuries were consistent with his feet having been run over by a motor vehicle.

The Plaintiff was rather vague on the details of the actual accident.  His story differed somewhat from versions of events provided by other witnesses.  It was generally accepted however, that the accident had occurred as described.

The Defendant alleged contributory negligence pursuant to section 47 of the Act.

The driver of the at-fault vehicle owed a duty of care to keep a proper lookout for the presence of the Plaintiff.  The driver was found to have breached that duty.  Given the accident circumstances, McGill J found the Plaintiff’s intoxication did not “contribute to that breach of duty.  The lack of a proper lookout on the part of the driver of the unidentified vehicle obviously had nothing to do with the intoxication or otherwise of the Plaintiff” (see s.47(3)(a) of the Act).  McGill J found that the driver of the unidentified vehicle had sufficient time and opportunity to be aware of the presence of the Plaintiff as he approached the intersection and therefore be able to take evasive action to avoid the Plaintiff.  The fact that the unidentified vehicle had only run over the Claimant’s feet rather than cleaning him up good and proper, supported this.

McGill J observed that the Nominal Defendant had only pleaded contributory negligence pursuant to s.47 of the Act and the Plaintiff was able to rebut the presumption therein.  It was only during counsel’s submissions that an argument for common law contributory negligence was raised. Even if, at that point, an application for leave had been made to amend the Defence to plead common law contributory negligence, McGill J said that he would not have granted it.

Judge McGill conceded that had contributory negligence been pleaded at common law, he would likely have accepted that due to the Plaintiff’s intoxication “his perceptions of the indications of the approach of the motor vehicle, particularly the sound of it, would have been diminished, and his reaction time would have been increased.  In those circumstances, it is I think quite likely that had he not been intoxicated, he would have noticed the approach of the vehicle sooner, which would have given him more time to get out of its way.”  He indicated that he would have apportioned 20% of the responsibility for the accident to the Plaintiff.

Quantum for the claim was assessed at just under $125,000 plus costs.