The High Court of Australia has recently ruled that contributory negligence would not be presumed where a passenger accepted a car ride from an intoxicated driver. This decision upheld the decision of the Full Court of the Supreme Court of South Australia, which found the passenger could not have been reasonably expected to have avoided the risk of driving with the intoxicated driver.

By way of background, in 2007, Ms Chadwick, Mr Allen and another friend were on a road trip. Ms Chadwick drove, as she was not drinking. After a short stop, Ms Chadwick returned to the car to find Mr Allen sitting in the driver’s seat. He would not allow her to drive. Ms Chadwick then got into the car as a passenger. She said that her reason for doing so was that she was confused, disorientated, panicked and unaware they were only 500m from the town. Ms Chadwick did not put on her seatbelt. She alleged that she could not engage the seatbelt mechanism due to the erratic driving of Mr Allen. Mr Allen lost control of the car and hit a tree. Ms Chadwick was thrown out of the car and suffered injuries that rendered her paraplegic. Mr Allen had a blood alcohol reading of 0.229%.

One of the issues in dispute was the application of the contributory negligence reductions for travelling in a vehicle with an intoxicated driver under section 47(2)(b) of the Civil Liability Act 1936 (SA) (the Act). Section 47 is similar to section 48 of the Civil Liability Act 2003 (Qld).

The primary judge concluded that Ms Chadwick was aware of Mr Allen’s intoxicated state when she got into the car but held that Ms Chadwick had ‘no choice’ but to accept the risk of riding with an intoxicated person. Accordingly, the trial judge found that the exception to section 47 of the Act applied and no reduction was made to Ms Chadwick’s damages.

On appeal to the Full Court, the majority upheld the trial judge’s decision. It was agreed that because of her panicked and anxious state, Ms Chadwick could not reasonably be expected to have avoided the risk of re entering the car with Mr Allen driving.

On appeal to the High Court, Mr Allen submitted the Full Court erred in considering Ms Chadwick’s personal characteristics by asking whether her position was ‘understandable’ in light of the circumstances and that the characteristics of a particular person should be disregarded.

The High Court held that section 47(2)(b) contemplates an objectively reasonable evaluation of the relative risks and that the circumstance that Ms Chadwick felt helpless, anxious and confused has nothing to do with a reasonable evaluation of relative risk. Their Honours also stated that objective facts that bear upon the reasonable assessment of the relative risks of alternative courses of action should be considered, however subjective characteristics of an individual that might diminish their capacity to make a reasonable evaluation of relative risk in light of those facts are immaterial.

Notwithstanding these findings, their Honours stated that it was not unreasonable for Ms Chadwick to have had no clear appreciation of her proximity to the town because she had driven out of the town under the direction of Mr Allen, following a series of directions for 10 to 15 minutes. Their Honours further stated that a person does not make an unreasonable choice when acting upon imperfect knowledge if perfect knowledge is not reasonably available. Ultimately, the High Court held that Ms Chadwick could not have been expected to have avoided the risk of driving with Mr Allen.

Ultimately, Mr Allen’s appeal on this issue was not allowed.

As a result of this decision, the High Court has confirmed what matters can be considered by a court when assessing contributory negligence if a plaintiff accepts a car ride from an intoxicated driver.