Laying down the Law, 7 ed.
Laying down the Law, 7 ed.
Your Study Aids
Laying Down the Law, 7th ed.
Cook, Creyke, Geddes, Hamer
Read Chapter 17: Legal Writing, Study and Exam Skills for more advice on how to improve your legal writing.
"A distinctive feature of much legal writing is that it is a vehicle for persuasion. ... To persuade, legal writing should be interesting, clear and readable." (page 405)
The following is an example of a well-written answer to a tort problem of the type commonly set for first year students. The answer is not necessarily perfect or fully up to date from a legal view. Students were required to keep within a specified word limit, and to cite authority within the text, rather than use footnotes or endnotes. This answer displays a central hallmark of good legal writing — the ability to express thoughts clearly without being verbose.
Use your mousepad to see the notes that highlight some of the strengths of the answer.
Jane and Bill are neighbours living in Woden, a suburb of Canberra. After the dawn service on ANZAC Day, another neighbour hosted a get-together at which drinks were served. Shortly before noon, Bill suggested to Jane that she drive with him into the city centre to play two-up at the RSL Club. Jane had seen Bill drink several cans of beer, and she noticed that his speech was slurred, but he appeared to be steady on his feet, so she agreed to go.
As they were coming around Vernon Circle, having just crossed the Commonwealth Avenue Bridge, Jane and Bill saw a police mobile breathalyser unit sitting in Northbourne Avenue. At the sight of the police, Bill panicked. He tried to make a sudden turn left into London Circuit, but because he was travelling quite swiftly (about 20 kph above the speed limit), the car could not make the corner. It crashed into the concrete median strip separating the two lanes of London Circuit opposite the Melbourne Building.
After the accident, Jane was a quadriplegic. Bill was unhurt except for scrapes and bruises, but it was determined that at the time of the accident his blood alcohol content was well over the legal limit for the operation of motor vehicles.
Would Jane be likely to succeed in an action in negligence against Bill for her quadriplegia?
State both the position at common law, and under the recent legislative tort reform. Do not discuss quantum.
For Jane’s action in negligence to succeed, it must be shown that Bill owed her a duty of care
and that he breached that duty. Bill might argue in defence that because of his condition of drunkenness, the standard of care which
he owed Jane should be lowered, and that in the circumstances, he was not in breach of it. Alternatively, he might attempt to avoid
liability by claiming that Jane voluntarily assumed the risk of travelling as his passenger, which would, therefore, defeat a negligence
action on her part. If, in the end, Bill is found to be negligent, he might seek to reduce his liability by claiming that Jane was
1. Duty of care
The driver/passenger relationship is an established category of duty of care: Cook v Cook (1986) 162 CLR 376. It is clear that Bill owed
Jane a duty to take reasonable care.
2. Breach of duty
If it can be shown that Bill did not act in accordance with the standard of care he owed to Jane, then he will be found in breach of his duty
towards her. However, the standard at which the law will set the duty is not clear.
Clear identification of the issue that arises with the breach element. Two competing approaches appear open
Either of two possible standards of care is applicable
to this situation. One is that of a reasonable driver unaffected by alcohol. The other is the standard of the intoxicated driver.
It is clear that the standard of the reasonable driver would be imposed if Jane ‘did not know that
[Bill] was under the influence [of alcohol] to the extent that his ability to drive or control a motor vehicle was impaired’: Radford
v Ward (1990) Aust Torts Rep 68,344 at 68,353 (SC Vic) per Murphy J. A definite appraisal of Jane’s knowledge in this regard cannot
be made from the facts presented. However, even if Jane were very slightly drunk herself, though this is not clear on the facts,
a genuine belief on her part that Bill was capable of safely driving a car precludes any lowering of Bill’s standard of care: Dodd
v McGlashan  ALR 433 at 434 (SC ACT) per Joske J. As noted below, it would, in other respects, be dangerous for Jane to rely upon
her own intoxication.
If the objective standard of care is maintained in this case, it would appear clear that Bill has breached
Bill may argue, however, that he should owe a lower standard; that of an intoxicated driver.
There is authority that a lowered standard of care would apply only if Jane had actual knowledge of Bill’s intoxicated state: Insurance
Commissioner v Joyce (1948) 77 CLR 39. However, though it was not a case concerned with drink driving, in Cook v Cook (1986) 162 CLR
376 the High Court of Australia stressed the special and exceptional nature of the circumstances required to justify a lowered standard
of care: at 383 per Mason, Wilson, Deane and Dawson JJ. This reasoning was followed by Teague J in Radford v Ward to justify the maintenance
by him of the objective standard in that case: above at 68,359 per Teague J. Citing this decision, Balkin and Davis
(Law of Torts, 3rd ed, 2004, p 380) consider that the weight of authority is against a lowering of the standard in the situation of an
Even if the law did allow a lowering of the standard in this situation, it is not clear that Jane was
sufficiently aware of Bill’s intoxication for this to apply. However, his subsequent behaviour may suggest that he was so intoxicated
that she must have known. If the standard is lowered, it nevertheless remains possible that he was still in breach, as was the case in Cook
v Cook, above.
On balance, it appears likely that Bill will be considered to have breached his duty.
Apart from an argument that no breach of duty occurred, Bill has available to him the defences of volenti non fit injuria and
1. Voluntary assumption of risk (volenti non fit injuria)
At common law, this defence may be available. McTiernan J and Williams J stated the test for volenti in Roggenkamp v Bennett (1950)
80 CLR 292 at 300:
Fairly long quotation, but directly on point
‘...the plaintiff must be shown not only to have perceived the existence of danger, for this alone would be insufficient, but
also that he fully appreciated it and voluntarily accepted the risk’. In the case of drink driving,
this would entail a passenger being fully aware of a driver’s level of intoxication, and voluntarily submitting him or herself
to the risk of travelling as a passenger with that driver: Banovic v Perkovic (1982) 30 SASR 34 at 36 per King CJ.
If it can be shown that Jane fully comprehended the extent and danger of Bill’s intoxication,
then the volenti defence has a chance of succeeding. If, however, the evidence is such that Jane did not
comprehend this danger, perhaps because of her own intoxication, it cannot be said that she voluntarily submitted herself to it and
the defence must accordingly fail. While the three defences available to Bill are not mutually exclusive, if the volenti defence fails
because of Jane’s incomprehension of Bill’s condition, then the ‘lowered standard’ defence might also fail,
because it too requires full comprehension.
Since courts have had power to apportion liability for contributory negligence, they have preferred
to use this rather than the absolute defence of volenti. In the ACT, where the defendant seeks to argue that the plaintiff should have
known of his intoxication, this must now be considered by the court in terms of contributory negligence. The volenti defence is excluded:
Civil Law (Wrongs) Act 2002 (ACT) s 96(1), (5).
2. Contributory negligence
At common law, Jane will be found contributorily negligent if she ought reasonably to have known that taking a certain course of action
would place her own safety in jeopardy: Dodd v McGlashan (above at 436 per Joske J). Therefore, even if Jane believed Bill was sober
enough to drive,
Two possible applications
if it is shown that a reasonable person ought to have realised Bill’s dangerously
high level of intoxication, then Jane could be found contributorily negligent: O’Shea v Permanent Trustee Co of NSW Ltd 
Qd R 1 at 6 per Wanstall J. Equally, if Jane had consumed alcohol (which, as noted, is not made clear in the facts) and this had
impaired her judgement, her condition would be self-induced and she could be found contributorily negligent on this basis:
Insurance Commissioner v Joyce, above. Bill’s conduct suggests that his level of intoxication would have been apparent to a
Both leading to same conclusion
Given the facts, a finding of contributory negligence is likely.
The contributory negligence argument is stronger under the Civil Law (Wrongs) Act 2002 (ACT).
Her contributory negligence will be presumed if she ought to have known that Bill was intoxicated: s 96(1).
Again, discussion of position under common law followed by discussion of position under legislation as required
To rebut this presumption she would need to prove either that Bill’s intoxication did not contribute to the accident, or that she could not
reasonably be expected to have avoided being Bill’s passenger: s 96(2). Neither argument appears
to have much chance of success. She cannot avoid the application of s 96 by arguing that her own intoxication prevented her from
having awareness of Bill’s intoxication, because for her to have been intoxicated would also raise a presumption of contributory
negligence: s 95(1). To rebut this she would have to prove either that her intoxication was not self-induced, or that it did not contribute
to her injuries. Neither argument appears open on the facts given.
The most likely resolution of this problem is that Bill will be found to have owed and breached an objective standard of care to Jane.
Both at common law and under the Civil Wrongs Act 2002 (ACT), his liability is likely to be reduced on the basis of Jane’s contributory
negligence in becoming a passenger of an intoxicated driver.
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