QBE has been ordered to pay 80% of a $760,000 claim on behalf of their client when Justice Fryberg had to rule on the civil responsibility for the death of Stephen Crouch. French v QBE Insurance (Australia) Limited  QSC 105
He was a house painter who attended a Saturday evening barbecue at Southport for about four hours and after becoming intoxicated, had been manipulated into a taxi. The taxi driver received instructions to deliver him safely home to what he believed he was told was 27 Yangoora Crescent rather than number 37 where he lived. The female occupant said she had no idea who he was. He was found dead on a road about two hours later.
It is what happened between this time which is crucial to the judgement made.
The Taxi Driver could not extract more details of the passenger’s address so called his Base who requested police assistance. After it had not arrived ten minutes, the driver rolled Crouch out of the back door of the cab onto the footpath still asleep but took the passenger’s mobile phone? Was this in lieu of payment?
After the Taxi left, he awoke and started wandering around the locality until he was run over first by an unidentified vehicle and secondly by a 19-year-old driver in another car 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 the Taxi Company and 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 his car could not be proven to have contributed to his ultimate death.
The plaintiff succeeded however in her claim against the unidentified driver and the taxi driver’s insurer, QBE.
The Taxi driver was held to have owed Mr Crouch a duty in tort and in 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. This 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”.
QBE accepted liability for its insured Taxi driver, who unfortunately died before the trial last May, as it was required to do under s51 of the Insurance Contracts Act. There was no claim against the taxi driver’s Compulsory Third Party insurer even though that unsafely discharging a drunk passenger asleep on the side of the road might arguably have resulted in an injury may be within s5 of the Motor Accident Insurance Act,
The unidentified driver was also liable – not in respect of his collision with Crouch 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.”
These days, the Civil Liability Act clarifies these dutues but this claim was not defeated by s46 of the Civil Liability Act (QLD) because according to 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.”
Also s47 of the Civil Liability Act 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 insteadprevailed 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 for that amount. Liability was apportioned between the nominal defendant as to 20% and QBE, for the taxi driver, as to 80%.