Taylor v Quigg [1959] PGSC 21 (21 May 1959)

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I, ARTHUR CECIL TINGLE, Registrar of the Supreme Court of the Territory of Papua and New Guinea, being the Officer having ordinarily the custody of the records of such Court, DO HEREBY CERTIFY that the following typewritten pages numbered 1 to 24, each of which is initialled by me, contain a true, correct and complete copy of the notes taken by the Judge at the trial with the exception that his abbreviations have been expanded for the sake of clarity.

DATED at Port Moresby this ................day of November One thousand nine hundred and fifty-nine.

Claim for damages arising out of injuries received as a result of motor accident.

For Plaintiff:
For Defendant:

Tonking of Lae
White of Port Moresby.

Tonking opens. Outlines proposed evidence. Res ipsa loquitor applies. Damages will come under: - (1) Out of pocket expenses. (2) Loss of wages. (3) Pain and suffering. (4) Partial incapacity. (5) Loss of future earnings.

I am a Refrigeration Engineer at present living in Brisbane. I have come to Lae for the hearing of this case.

On the night of 17th September, 1956 in the company of Defendant and others I went to the Hotel Cecil at Lae. We left the Hotel at approximately 10 p.m. The party travelled by car to and from the Hotel. Defendant, Milton Quigg, was the driver.

After leaving the Hotel the car was travelling along Markham Road in the direction of Milford Haven Road. Just prior to the accident the car seemed to swerve to the incorrect side of the road then back again to the correct side of the road and again to the incorrect side of the road and back again to the correct side of the road and eventually running off the correct side of the road.

I could not remember anything at the time of the accident but I do remember regaining consciousness for a few moments, may be a little more. I was complaining of pain in my left leg and I said, "Oh my leg. Oh my leg." And I went into unconsciousness again.

I was taken to Hospital at Lae. I remained in that Hospital for approximately four months. And I was then taken to Port Moresby. I remained in the Port Moresby Hospital for approximately one month. At the end of that month I travelled to Brisbane.

At the Lae Hospital I was put in plaster and at the Port Moresby Hospital I was re-plastered. At Port Moresby the plaster was from my chest to the toes of my left foot.

Doctor Eassler of Port Moresby suggested that I might return to Lae where I might eventually obtain accommodation. I was not satisfied with that and I contacted my employers, Burns Philip, through their Head Office at Port Moresby and it was eventually arranged so that they advanced me my air fare to Brisbane.

I travelled to Brisbane still in the full plaster. I left Port Moresby early January, 1957. On arriving at Brisbane I was admitted to the Brisbane General Hospital and I was operated on ten days after I was admitted. Doctor Stubbs Brown, an Orthopedic Surgeon, performed the operation.

I remained in the Brisbane General Hospital for approximately four months and at Rosemount Hospital, which is in conjunction with the Brisbane General Hospital, for approximately two more months; altogether approximately six months.

When I arrived at Rosemount Hospital I was re-plastered the same as when I left Port Moresby; full plaster from my chest to the toes on the left leg. I was discharged in that condition. I remained in plaster after discharge from Rosemount Hospital for approximately another four months.

I attended Brisbane General Hospital as outpatient for some considerable period for X-rays.

The plaster was removed at the Brisbane General Hospital after my discharge. I was eventually interviewed once a week for about five weeks. Then the plaster was removed about five months after my discharge.

After I was discharged from the Rosemount Hospital I went to live at 50 Paradise Street, Highgate Hill, Brisbane.

After discharge from Rosemount Hospital I received nursing attention and physiotherapy as an outpatient at the Brisbane General Hospital. Subsequently I received home nursing attention at Highgate Hill because I could not move or attend the toilet, etc. myself because of the plaster. And later further home nursing attention after the plaster was removed because my left leg had withered. I had that home nursing treatment for approximately ten weeks.

I was first able to move about approximately November, 1957, with the aid of two mop handles which I had cut down to use as walking sticks.

I have not had further treatment since then. I contacted Doctor Stubbs Brown and he informed me that my leg will have a permanent stiffness, having been immobile for so long.

As a result of the accident I had the broken leg – a combined fracture of the left femur – leaving two scars, one from the lower abdomen round to the hip shout ten inches long and another down the outside of the upper leg about nine inches long.

Also a scar over the left eye, which was stitched, about three inches long. Another from the front line of the scalp along the top of the scalp about five inches long. Also a broken nose but that is now straight. And a fractured lower left jaw.

After the accident happened I was unconscious for a few moments and again later. I did not recollect anything for three or four days.

My present condition now is that I am not stable. I must have a stick for my balance. The injured left leg is one and one quarter inches shorter than the right leg. I have only a few degrees of movement in the left leg itself.

Since the bone graft I get very very tired in the left side of the body if I stand for any length of time. And even while sitting the leg seems to have no circulation, it gets "pine and needles", seems to have no feeling in it.

During wet weather I get severe pains from the left hip to the left ankle. It appears not to have circulation. This necessitates that when I am indoors I lie down and cover it and keep it warm. Or if I am out walking I must sit down somewhere. And when sitting down I must sit down on my buttocks and rest the whole of my body.

My jaw has healed. During the knitting of the jaw I had to lose a few teeth to allow the jawbone to knit. My nose is all right.

I have trouble with my left eye. With heavy concentration or reading a book I get a very bad irritation of the left eye, completely bloodshot. I did not wear glasses prior to the accident. I can see well with the left eye in a frontal direction but to the half left my vision of the left eye is blurred.

From what I have gone through I have had a great deal of pain. Practically every day, some days excessive but others not so. Particularly in wet weather or when I walk.

During the War I served in the Navy in the Engineering Branch. After my discharge, as a Petty Officer with my Engineering Certificate, I approached the Queensland Machinery Department and I had to spend twelve months ashore before I could sit for any examinations. I eventually obtained my 1st Class Ticket for refrigeration. In the meantime I had passed other examinations in steam, but the refrigeration was most important. I obtained a pass of 94% for my 1st Class Refrigeration Ticket.

With my Refrigeration Ticket I obtained employment with Dry Ice Pty. Ltd., a subsidiary of Colonial Gas Company, manufacturers of refrigeration gases. I was in charge of machinery for six years at that factory as a Shift Engineer responsible for the manufacture of CO² gas. I finished with Dry Ice Pty. Ltd. in 1954. I decided to obtain day work employment only.

I joined Schweppes Ltd. in their cordial factory, in charge of their refrigeration plant for eight months. Then for twelve months in charge of air conditioning plants for Hoyts Theatres – four different theatres. Then with the Brisbane General Hospital in charge of their refrigeration and air conditioning plants, with others on shift work twenty-four hours a day.

I eventually signed a contract to come to Lae, with Burns Philip Ltd. I produce my contract. Tendered, Exhibit "A".

After the accident my contract was cancelled. I was paid only up to the date of the accident.

Since I have been able to move about I have made applications for positions in Brisbane. I have answered approximately twenty-four advertisements. Eight or nine acknowledged my application but when I went for an interview I had to use my stick and I had to use my stick and I had a distinct limp. Although I received sympathetic hearings I did not obtain work.

I contacted the Registration Department. They suggested they may be able to obtain a position for me driving a lift. Where I would not be asked to do heavy work. I told them I would use that only as a last resort.

I have worked in recent months. Firstly with T.C. Beirnes Ltd. at Brisbane for approximately twelve weeks as a refrigeration mechanic servicing household refrigerators. Sometimes in the store and sometimes outside. The time came when I had to take out a faulty unit and condenser from the cabinet and replace it. It weighed about sixty pounds. I could not lift the combined unit and condenser. I told Mr. Morrison, a junior Director of the Company, that I could not carry out the work. That was in fairness to the Company and to myself. The Refrigeration Engineer in charge of air conditioning had gone to hospital and I relieved him for three weeks. It was all automatic and the work was mostly sitting down. When he came back I finished up.

For weeks I tried to get a bench job, working on a bench I duly contacted a Mr. Tom Hill, Manager of Colda Refrigeration Company. I had known him previously. I told him of my position. He advised me there were no vacancies then. But a few days later he sent word for me to start as a refrigeration mechanic only. I had bench work which proved satisfactory but I did need assistance from time to time in lifting heavy units.

That lasted till Colda Refrigeration Co. amalgamated with Malleys Ltd. last year, in December, 1958. Mr. Tom Hill was made Queensland Manager of Malleys Ltd. and I was appointed Technical Representative; advising various retailers and their mechanics how to service washing machines and refrigerators. 12.5 p.m adjourned.

My prospects of remaining in the position – Malleys manufacture only washing machines – but with the amalgamation they are now known as "Malleys Colda" manufacturing refrigerators. So I cannot say whether I will continue on in my present position with the amalgamated company. I was employed in my capacity as Techinical Representative until nine days ago, when I came up here for this case. I have leave of absence without pay.

At Colda I received £18.10.0. per week. And at T.C. Beirnes Ltd., £18.10.0.per week. That was the award wage.

If I were employed on the commercial side with heavy machinery and toxic gases I would be paid in the vicinity of £24. per week. That is the general rate. Some companies pay £1. above and others pay £1. below.

As a refrigeration mechanic I have to get down on the floor and carry out work in that position. Sometimes I do manage to get up but most times I have somebody to give me a hand and pull me up off the floor.

Note: After discussion between Judge and both Counsel regarding proof of items of damages excepting Item 7 in the Statement of Claim – Plaintiff has no receipts and has not brought with him any accounts – arranged by consent that White will cross-examine Plaintiff on the other evidence already given by him and later the case will be adjourned to enable Plaintiff to produce the necessary accounts.)

Q: Then that is not correct? A: That is an estimate on what my previous father-in-law paid for his glasses. My wife died in June, 1952.

Q:On the night of the accident you went to the Hotel Cecil just after eight o'clock? A: Yes. That would be about the time.

Q: If they all put the time of your departure from the Hotel at ten minutes to eleven what would you say to that? A: We did not have any drinks after ten o'clock and I thought we left a few minutes after that time.

Q: You don’t agree because you think you left when the liquor cut out at ten o'clock and therefore you would have left at that time? A: Yes.

Q: Just as you were leaving you took round the hat and bought beer, and coca-cola? A: Milton Quigg and Robert McGill and John Henry Newton and I were there and in the vehicle behind was George Winspear. He decided to put in. We bought – it worked out about two bottles of beer each to take back to the Mess. Most of us usually finished work in the afternoon about 5 p.m. with our clothes dirty, so we preferred to have a beer after work and then to have our meal and a drink afterwards in the Mess.

Q: Quigg drank rum and coca-cola that night? A: Yes. He surprised me. He normally drank Palate, a soft drink. That was in the Hotel.

Q: I put it to you that you bought that drink to drink it in the Mess that night? A: I have no recollection of buying it to drink in the Mess that night.

Q: Winapear thought he was going to have a drink in the Mess that night? A: I do not know what his thoughts were.

Q: Winspear put in money because he knew he was going to the Mess to drink? A: He put in two bottles of beer but whether he thought he was going to the Mess that night to drink it I have no idea.

Q: Your party sat in a corner and spent your time talking and drinking? A: Mostly taken up with the music and drinking. I managed to have a few dances.

Q: You do not advance any theory as to what made the car swing across the road? A: I have no idea at all.

Q: You are engaged in what you might call "domestic refrigeration"? A: Yes now, but not when I was up here at Lae.

Q: And in that work you have to get on the floor and lift heavy units more often than you would in "industrial" refrigeration. What is the difference? A: No. in industrial refrigeration you have toxic gas. In domestic refrigeration you have non-toxic gas. The comparison between the two is that industrial refrigeration is anywhere from the two tons to one hundred tons. But you have to get on the floor to repair both. In the industrial refrigeration you use a block and tackle for heavy lifts, but you still have many lighter lifts to be done manually.

Q: What would you say if I told you there is a refrigeration mechanic at Port Moresby with only one leg and no artificial leg working for two years? A: He may have had only one leg but my left leg seems to get in the way more than anything else.

Q: At the present time you are happy with your work?
A: Yes. Since the amalgamation of the two companies I am very satisfied.

Q: This difficulty about rising from the floor should diminish with exercise of moving about? A: I cannot forecast. One day it might be quite all right, the next day difficult and painful.

Q: How long were you an impatient in the Brisbane General Hospital and Rosemount Hospital? A: As an impatient four months.

Q: How may plasters did you have altogether? A: One here at Lae and one in Brisbane.

Q: Do you remember when you had a plaster removed in Brisbane? A: I cannot remember exactly, but at a guess I would say about November, 1957.

Q: When you arrived home, after leaving Rosemount Hospital, did you immediately commence walking round on crutches – in your plaster? A: Yes.

Q: What happened after the plaster was taken off? A: After the plaster was taken off I did not get round on sticks. I had plaster sores on the lower left leg and with the leg strengthening it was about another two or three weeks before I moved round on sticks.

Q: And that concluded your normal convalescence, you were getting stronger and stronger? A: Yes.

Q: Was it then that you started work with T.C. Beirnes Ltd.? A: No. Quite some time after that. I started with T.C. Beirnes about October, 1957.

Q: And you were with them till they amalgamated with Malleys? A: No. I was only temporarily with them during the peak period. I was with them till March or April, then I went to Mackay to some friends for a bit of a rest for about a month or a little longer. Then back to Colda Pty. Ltd. and they put me on the bench, about May, 1958.

Q: And you have been with them, including the amalgamation ever since? A: Yes. There was one break, I think, for a few weeks, for a spell.

Q: Was Miss Barklet living at 50 Paradise Road, Highgate Hill: A: Yes. There were three flats; she was living in one.

Q: On the day of the accident Defendant came to the Mess about 5 p.m.? A: Yes. About that time but I couldn't say exactly.

Q: You were all in the Mess together for some time before you want to the Hotel? A: Yes. We had our evening meal there.

Q: And you all had some drink? A: I don’t honestly recall drinking beer there that particularly evening, but it was normal procedure. We usually had beer in supply.

Q: There was nothing to stop you following your usual custom? A: No. But when we took the hat round at the Hotel that was probably because of lack of beer at the Mess.

Tonking: Regarding the items in the statement of claim, Mr. White and I have agreed: -

Item 1.	Agreed at	£43.17.0.
'' 2.	Agreed at	£138.0.0.0. or any greater amount proved today
'' 3.	Agreed at	£10.10.0.
'' 4. )
" 5. )	Both struck out.
'' 6.	Agreed at	£100.0.0.
'' 7.	Is for argument and calculation.
" 8	Agreed at	£38.0.0.
" 9	To be dealt with as general damages.
'' 10.	Struck out.

I am a legally qualified Medical Practioner employed in the Administration Department of Health. As present I am performing surgeon specialist duties at Lae European Hospital.

On the morning of 19th September, 1956 I was on duty at the Hospital when the Plaintiff, Ernest Raymond Taylor, was admitted to Hospital. I examined him. He was very shocked. He had lacerations on the face and skull. A fractured nose. The left leg was very swollen and much shorter than the right leg, about four inches shorter. A puncture on the lateral side of the leg. After an examination I found a compound fracture of the left femur.

His leg was placed in special splints and skin traction treatment applied. X-rays were taken showing a compound splintered fracture in the middle of the left femur. And a fractured lower left jaw and a fractured nose. He was semi-conscious. He had been treated for shock.

After a few days he recovered from the shock and a pin was inserted in the lower part of the femur and a skeleton traction treatment applied. His left knee was swollen and tender.

The treatment continued for ten weeks. After the last X-ray there was not much consolidation of the fracture and there was traumatic arthritis of the left knee. And I decided that an open decision should be made to transfer the patient out. I put his leg in plaster only for the purpose of transport.

I have had the opportunity of reading the report of Doctor Stubbs Brown of Brisbane and also the report of Doctor Donald Watson of Brisbane.

On my examination of Plaintiff last week I found stiffness of the left knee restricting the movement, and also shortening of the left leg. He will have a permanent disability of the left leg. It will improve very little.

Q: The healing which did not eventuate here at Lae took place in Brisbane? A: Yes. After the operation there.

Q: From your evidence he should have gone south for an operation when you recommended it? A: Yes. After ten weeks I conferred with Doctor Wilson and recommended that Taylor go south.

Q: There was no benefit whatever in helping him here after that? A: No. No benefit.

I am employed by Lae Motors. On the night of 17th or 18th September, 1956 I and the Plaintiff and a man named Newton went to the Hotel Cecil, at approximately eight o'clock, We left the Hotel some time between ten and eleven o'clock – the same party which had arrived.

Milton Quigg was driving the car. We proceeded along Markham Road in the direction of Milford Haven Road. The car was normal until opposite Qantas Hangar, when the car started to swerve from one direction to another. Eventually the car came to a standstill. It hit a tree just about opposite the intersection of Coronation Drive.

I had parked on that road on many occasions. From where the car started to swerve to where it hit the tree would be about three hundred yards. The tree was about six feet off the bitumen part of the road.

Q: You remember making a statement to Mr. Johnson about this accident? A: It was to Sub-Inspector Curtis.

Q: In your statement to Sub-Inspector Curtis you said your party left the Hotel Cecil about 10.55 or eleven o'clock? A: I made that statement two and a half years ago and I cannot remember.

Q: The plaintiff, Taylor, said you left the Hotel when they stopped serving drinks? A: That would be right.

Q: That would normally be eleven o'clock? A: I am not sure when they stopped serving.

Q: It may well have been eleven o'clock? A: I cannot remember, but it was between ten and eleven o'clock.

Q: You were drinking at the Mess before you went to the Hotel? A: I don’t think we did that night because we had arranged to go to the Hotel.

Q: When you left the Hotel your party bought beer and rum and coca-cola? A: Yes.

Q: Was Mr. Winspear going to join you at the Mess? A: Yes. He was on his way to the Mess.

Q: What were you doing with the drink the party bought at the Hotel? A: We were taking it back to the Mess but not to drink it that night.

Q: Why did you volunteer the remark "not to drink it that night"? A: Because I had enough to drink that night.

Q: Why did you tell me that; why did you volunteer that? A: Because the way the question was put I expected to be asked that next.

White: There will be only one witness for the Defendant. He is Sub-Inspector Curtis.

I am a Sub-Inspector of Police stationed at Lae. On the 17th September, 1956 I went to the scene of an accident in Markham road. That was about 11.30 p.m. I was on duty on Mobile Patrol and I received the information from the Police Station.

The car was extensively damaged. I went off and got a hacksaw from Doctor Bruce of the Lae Hospital and with the hacksaw we released Taylor from the wreckage of the car.

I was able to follow the passage of the car to the point of impact with the tree – by the skidmarks were approximately for 212 yards. The tracks were about 103 yards on the incorrect side of the road, then about 35 yards on the shoulder of the road, on the wrong side of the road; a continuation of the road. Then back on to the road on the wrong side of the road for about 37 yards. Then diagonally across the road for about 20 yards. Then about 17 yards on the correct side of this road. And then the tracks led directly to the rear wheels of the vehicle which had struck a tree about 10 feet from the side of the road.

First I was busy with Taylor. Later I had an opportunity at the Lae Hospital to observe Quigg.

I spoke to Quigg; what would be about 12:30 a.m. I said to him. "Where have you been tonight?" He said, "Down at the Hotel Cecil where we had a few drinks." I said, "How many?" He said "Just a couple." I said, "I will have to arrest you for driving under the influence of liquor." He did not reply to that. I did not arrest him. He was in Hospital but I charged him on 26th September.

On the night of 17th September I noticed he was disheveled. His clothing was untidy. He was excited. I could smell alcohol from his breath at a distance of two to three feet away. He was unsteady on his feet. I know he has a partly paralysed leg. I know him and I know his normal gait. His gait that night was more unsteady than it normally is.

Q: On the hearing of that charge did you mention any one of these indications of Quigg which yes have given in evidence here? A: No, I did not.

Q: Doctor Bruce and Doctor Svirklys both gave evidence on the hearing of that charge? A: Yes.

Q: Was Doctor Svirkleys at the scene of the accident? A: Not as far as I know. I understood he was at the Hospital.

Q: What time did you arrive at the Hospital with the injured parties, Taylor, Quigg, McGill and Newton? A: About 12.30 a.m.

In the particulars of negligence (b), (c), (d) and (e) are the important grounds.

Ground (c) is that the driver Quigg was under the influence of intoxicating liquor. That is admitted in paragraph 2 of the Defence.

Plaintiff has the duty of establishing negligence. He is using the rule "res ipsa loquitur" to establish facts not within his knowledge. On Barkway v. South Wales Transport Co., 1950 A.C. p.185 at Clork & Lindsell on Torts 11th Ed. p.402 that rule does not apply to road accidents.

1. He denies negligence as alleged or at all. Plaintiff alleged that Defendant was under the influence of intoxicating liquor. Defendant admitted that and that issue was then closed on the pleadings. The plaintiff knew of Defendant's state of intoxication and accepted the position. Knowing that intoxicated state of the Defendant the Plaintiff took the risk.

Refers to: R. v Kolake 1923, 2 K.B p. 793. Gibbs v Ross 1866, L.R., 1 Q.B. p.541. Insurance Commissioner v Joyce 1948, 77 C.L.R. p.35. Reggenkemp v Bennett 1950, 80 C.L.R. p.292.

There was no breach of duty by Defendant. Referring again to the two High Court Cases, supra.

Taylor was drinking with Quigg for over two hours helping him to get drunk and then driving with him in his vehicle. Taylor took the risk.

2. Denial of negligence on the other grounds. The only negligence that Plaintiff has proved is that Defendant was under the influence of intoxicating liquor. Plaintiff has not adduced evidence why the Defendant drove on the wrong side of the road and eventually off the road. "Res ipsa loquitur" does not apply.

On the question of damages: You have the figures agreed on for some of the items.

The loss of wages from Burns Philip Ltd. at £86.13.4. per month. Plaintiff is quite emphatic that he began work with T.C. Beirnes Ltd. round about October, 1957. The most he can claim, if any, is fourteen months.

As to the other damages. He has done well in his job; and he is progressing in it, thanks to his qualifications.

Pain and suffering. He must have had a lot of pain and suffering for some time. There is no rule of practice in the Courts. It is not to be niggardly nor again even generous. I will submit between £500 to £750.

Plaintiff's evidence has been corroborated by his witnesses and also by Sub-Inspector Curtis, the Defendant's one and only witness. White's submissions do not apply to this case. Defendant relies on the doctrine "res ipsa loquitur". Refers to Halsbury 2nd Ed. Vol. 23, para. 956 at p. 671 and the case in note (t) Eller v. Selfridge and Co. Ltd. where a motor vehicle whilst being driven mounts the pavements; and cited with approval in Clerk & Lindsell on Torts 11th Ed. at p.370.

Plaintiff and his witness and Sub-Inspector Curtis for Defendant all gave the same evidence of the weaving about of the car. That is positive evidence, apart from 'res ipsa loquitur." Defendant has not appeared to refute that evidence.

As to paragraph 2 and 6 of the Defence, there is evidence Defendant was so much under the influence of liquor. Defendant was charged with driving under the influence of liquor but was acquitted on the hearing of that charge.

14 months from Burns Philip Ltd. at £86.13.4. per week. T.C. Beirnes Ltd. £18. per week. Malleys Colda Ltd. £18. per week gross.

General damages consist of pain and suffering a Plaintiff's permanent incapacity and his deterioration of earning ability. Those damages should be substantial.

Defendant's acquittal on the drunken driving charge does not apply in this Court.

Killer v. Selfridge and Co. Ltd. does not apply. Here there is an explanation of the car's conduct.

There is an English case, Benn v. Hamilton, 1939, 1 K.B at p. 509, which is against the two High Court authorities quoted by me. But that English case was not followed by the High Court of Australia.

In the Statement of Claim the Plaintiff alleged that the accident arose "By reason of the negligent driving of the Defendant the said motor car collided with a tree, whereby the Plaintiff suffered injury which involved much pain and suffering." The Defendant asked for further and better particulars, to which the Plaintiff answered, inter alia, "Negligence whilst driving the said vehicle under the influence of intoxicating liquor." Paragraph 2 of the Defence reads: - "The Defendant admits the allegation contained in paragraph 2 of the Statement of Claim that he drove the motor car mentioned in the Statement of Claim when under the influence of intoxicating liquor." In his Reply the Plaintiff did not join issue thereon.

On the hearing in the District Court at Lae the Defendant was acquitted on the drunken driving charge. On that hearing was acquitted on the drunken driving charge. On that hearing Sub-Inspector Curtis did not give the evidence which he gave in this case before this Court. It was not explained why.

Nevertheless Defendant's acquittal in the District Court is not necessarily conclusive in this civil action.

The party was drinking alcoholic liquor at the Hotel Cecil for at least two hours. The Defendant was drinking rum and coca-cola, which was not his usual drink. His usual drink was Palato, a soft drink. The Plaintiff know this and it surprised him.

Defendant's Vehicle could be deemed to be hopelessly out of control at the time of the accident, at about 11 p.m. on 17th September, 1956.

1. Defendant, the driver of his vehicle, was under the influence of intoxicating liquor at the time of the accident.

2. Plaintiff had been drinking intoxicating liquor with Defendant at the Hotel Cecil from approximately 8 p.m. for at least two hours on the night of the accident.

3. Defendant drove from the Hotel Cecil in his vehicle whilst under the influence of intoxicating liquor to such an extent that he was not capable of properly driving and controlling his vehicle.

4. Plaintiff voluntarily became a passenger in the Defendant's vehicle and voluntarily assumed the risk involved, knowing the Defendant to be under the influence of intoxicating liquor as in the previous finding.

5. When Plaintiff became a voluntary passenger in Defendant's vehicle, as in finding 4, Plaintiff was not under the influence of intoxicating liquor to such an extent that he did not know that the Defendant was under the influence of intoxicating liquor to such an extent that he, the Defendant, was not capable of properly driving and controlling his vehicle.

In my opinion the doctrine of "res ipsa loquitur" does not apply in this case. There is evidence to rebut that doctrine, as mentioned above.

On the evidence, and on my findings, I am bound by the two High Court cases, Insurance Commissioner v. Joyce and Reggankamp v. Bennett. Accordingly my decision must be in favour of the Defendant.

Plaintiff's claim is dismissed. Judgment for the Defendant, with costs to be taxed.

Supreme Court of Papua New Guinea

Taylor v Quigg [1959] PGSC 21 (21 May 1959)