James and Gertrude were in a de-facto relationship. Their best friends Samuel and Zoe were getting married. To celebrate the occasion James and Gertrude organised the Hens and Bucks nights. They planned to have a day out at the races, followed by karaoke in the nearby town.
The group of 20 arrived at the races at 11.00am and they started drinking alcohol. At
4.00pm a mini bus arrived to take the group to Airlie Beach. On arrival at Airlie Beach the girls were dropped off at a local beauty salon for some pampering and the boys were dropped off at the Court House Hotel. The girls later went to dinner before heading to Joe’s, the Karaoke bar around 7.30pm. The girls drank champagne and had fun singing until the boys arrived about 9.00pm. Gertrude had her last drink at 8.00pm.
On arrival at Joe’s, James told Gertrude that he thought the pubs would be closing soon and suggested that they get some beer for the bus ride home. James and Gertrude left Joe’s and walked to the bottle shop. As they walked down the road James told her that he knew how to hot wire a car and bragged that he could show her how to do it. Together they smashed in the back window of a red Holden Barina. James hotwired the Barina and drove them to the drive through bottle shop.
James ordered 3 cartons of VB beer and drove off without paying for them. They arrived at the mini bus where they found it locked, so they smashed in a window and James put the beer on the back seat.
They ditched the Barina. They return to Joe’s and parted ways. The bar was closing at
10.00pm. At 9.30pm Gertrude went looking for James, she eventually found him sitting in a booth with Zoe looking rather friendly.
Gertrude confronted James and before they knew it they were in a full blown argument as
James confessed he had feelings for Zoe. Gertrude was very angry. She stormed out of
Joe’s and climbed in the smashed window of the mini bus. She hotwired it as James had shown her earlier in the night and drove around Airlie Beach in an erratic manner for about
15 minutes.
The driver of the mini bus had been waiting at MacDonald’s and had seen the mini bus being driven by Gertrude. He reported the theft to the police.
Gertrude eventually calmed down and drove back to Joe’s to pick everyone up. On arrival at Joe’s everyone was waiting outside for her. Gertrude opened the door to the mini bus and yelled out saying they should get in as she had beer for the ride home. No-one questioned
Gertrude’s ability to drive. James was the last person to get on the bus, the argument restarted as Gertrude attempted to close the door on him.
Gertrude drove out of Airlie Beach. Once on the highway the speed limit increased to
100km. Gertrude increased her speed to 130km. James and Gertrude continued to argue, the more heated the argument the more reckless Gertrude’s driving became.

At one point James yelled ‘Slow down you’re going to kill us’, Gertrude ignored him and continued driving. James then asked Gertrude to stop the bus so they could all get off.
Gertrude told James to ‘shut up’. James said words to the effect ‘fine then’ and sat at the back of the bus and opened up a can of VB.
A few minutes later Zoe asked Gertrude to slow down. Gertrude did not listen, instead she proceed to yell at Zoe for attempting to steal her man.
Zoe, crying, repeated her request and asked Gertrude to stop. Gertrude kept driving.
The road was dark and all of a sudden Gertrude heard police sirens and saw flashing lights in her rearview mirror. She knew she was in trouble. As she turned her attention to the road
Gertrude saw a bridge, it was very narrow. She tried to slow down and line up the bus but she was unable to and lost control. The bus went over the bridge.
As a result of the crash 2 people died and James suffered catastrophic injuries.
Judge Rupert found:
1. That Gertrude owed James a duty of care and was negligent in her actions;
2. Damages were awarded to James. James was found to be 70% contributory negligent.
Gertrude appeals Judge Rupert’s finding on liability. James cross-appeals, challenging
Judge Rupert’s finding of contributory negligence.
It can be assumed for the purpose of the question that only common law principles apply and that the Civil Liability Act 2003 does not apply.
Suggested reading
Miller v Miller [2011] HCA 9 (7 April 2011)
Miller v Miller [2009] WASCA 199 (6 November 2009)
Miller v Miller [2008] WADC 46 (3 April)
Gala v Preston [1991] HCA 18;
Smith v Jenkins [1970] HCA 2;
Jackson v Harrison [1978] HCA 17
Progress and Properties Ltd v Craft [1976] HCA 59
Joslyn v Berryman [2003] HCA 34