Background

The High Court of Australia has recently considered the extent to which a Plaintiff who willingly agreed to ride as a passenger in a vehicle driven by an intoxicated driver ought to be exposed to a finding of contributory negligence.

In 2007 the Plaintiff, Ms Chadwick, and the insured driver, Mr Allen, were in an “on and off” relationship. The Plaintiff was 21 years of age and the insured driver was 28 years of age. At the time of the accident the Plaintiff was pregnant.

The Plaintiff and the insured driver, along with other friends, went on a road trip and over the course of this journey the Plaintiff observed the insured driver to consume alcohol throughout the day. At an earlier point in the journey the Plaintiff assumed the responsibility of driving because she was pregnant and not drinking. At one point in the day the family played in a playground and the insured driver fell off a see-saw which he later attributed to his state of intoxication.

Over the course of the evening in question the insured continued to drink at a local hotel until last drinks were called between 1.30am - 2.00am and it was accepted the Plaintiff knew of this activity. Earlier in the evening the Plaintiff had tucked her children into bed at a nearby motel. A decision was then made by the group to go for a drive to find cigarettes. The Plaintiff initially assumed the responsibility of driving whilst the insured driver and another friend, Mr Martlew, occupied the passenger seats.

The Plaintiff drove around for some 10 – 15 minutes until at one point they found themselves on the outskirts of Port Victoria (approximately 500 metres from the hotel where they had been drinking and the children were sleeping).  The Plaintiff pulled over ‘in the middle of nowhere’ in the black of night to urinate on the side of the road.

When the Plaintiff returned to the vehicle the insured driver had occupied the driver’s seat. The Plaintiff’s evidence was that they argued about who would drive but she was told curtly by the insured driver to get in the car and she did so taking up a position in the right rear passenger seat.

The Plaintiff’s evidence was that the insured took off at speed without her having an opportunity to close the door but the force of the acceleration closed the door. The Plaintiff’s evidence was that she did not put on her seatbelt and that the insured was driving aggressively and erratically.  He drove back into town where he performed a U-turn on the main street, spun the tyres and then accelerated back out of town along the road.

The insured driver attempted a sweeping left hand bend but lost control of the car which struck trees causing the Plaintiff to be catapulted out of the car resulting in her sustaining spinal cord injuries that left her paraplegic.

It was subsequently determined that the insured driver had a blood alcohol level of 0.229% at the time of the accident

The decision at first instance

The matter initially proceeded before the District Court of South Australia.

Liability was admitted and the primary issue at trial was the extent to which the Plaintiff had been contributory negligent, first for choosing to travel in the car driven by the insured when she ought to have known of his intoxication, and secondly for failing to wear her seatbelt.

At first instance Tilmouth DCJ declined to make a reduction of 50% for contributory negligence pursuant to section 47 of the Civil Liability Act 1936 (SA) (the SA Act). This section is almost in identical terms to section 48 of the CLA 2003 (Qld) (the CLA). Section 47 of the SA Act created an irrebuttable presumption of contributory negligence on the part of a person injured in the circumstances such as that of the Plaintiff and provided:

If –

  1. the injured person –
  1. was of or above the age of 16 years at the time of the accident; and
  2. relied on the care and skill of a person who was intoxicated at the time of the accident; and
  3. was aware, or ought to have been aware, that the other person was intoxicated; and
  1. the accident was caused through the negligence of the other person; and
  2. the defendant alleges contributory negligence on the part of the injured person,
    contributory negligence will, subject to this section, be presumed.[1]

An exemption to the operation of section 47(1) of the Act arises where the injured person establishes that they could not ‘reasonably be expected to have avoided the risk of injury’ which arose as a result of relying on the care and skill of a person who was, and should have been known by the Plaintiff to be, intoxicated. To that end, section 47(2) of the SA Act provided that this presumption was irrebuttable unless the injured person established, on the balance of probability[2] that:

… (b) the injured person could not reasonably be expected to have avoided the risk.[3]

It ought to be borne in mind that in Queensland section 48 of the CLA essentially requires:

  1. A person to be at least 16 years of age;
  2. To have relied on the care and skill of a person who was intoxicated;
  3. The Plaintiff was or ought to have been aware of the intoxication;
  4. The negligence of the Defendant caused the harm to the Plaintiff;
  5.  Any contributory negligence alleged will be ‘presumed’; and
  6. The presumption can only be rebutted if the Plaintiff establishes, on the balance of probabilities, that:

a. The driver’s intoxication did not contribute to the breach of duty; or

b. The Plaintiff could not reasonably be expected to have avoided relying on the driver’s care and skill.

At first instance the trial judge held that the Plaintiff ought to have been aware that the insured was intoxicated when she decided to ride with him and therefore under section 47(1) there was a presumption of contributory negligence on her part.

At trial the Plaintiff contended that the exception in section 47(2)(b) of the SA Act applied because, in the circumstances, she could not reasonably be expected to have avoided the risk of travelling with the insured driver. The trial judge accepted that contention and the Plaintiff thereby avoided a reduction of 50% for contributory negligence. The trial judge did so primarily on the basis that he accepted that the Plaintiff did not know where she was in relation to the town after finding the insured insisting upon driving. The trial judge described the situation confronting the Plaintiff this way:

… A 21 year old pregnant woman … with two older men at 2.00 am in the morning in a strange place, stranded on the outskirts of a remote country town in a darkened area, without appreciating that she was much nearer than she thought, and when no-one was up or about.

His Honour went on to conclude that the Plaintiff had ‘little choice but to enter the vehicle’ because of her ‘precarious situation’ in those circumstances.

At trial the Plaintiff also argued that her failure to wear a seatbelt did not constitute contributory negligence because the seatbelt was inoperable. The trial judge did not accept that there was any defect with the seatbelt. The Plaintiff also gave evidence at trial that the erratic driving of the vehicle made it impossible for her to engage the seatbelt. This too was rejected by the trial judge and it was found that the Plaintiff was 25% contributory negligent.

The full supreme court of south Australia

The matter went on appeal to the Full Court of the Supreme Court of South Australia. The insured driver appealed the decision with respect to section 47 of the SA Act, however, that appeal was unsuccessful with the Full Court upholding the trial judge’s decision that the Plaintiff could not reasonably be expected to have avoided the risk of entering the vehicle with the intoxicated insured.

The Full Court disagreed with the trial judge about the adverse finding in regard to the seatbelt issue and held that it was ‘wholly unrealistic’ to expect a Plaintiff in these circumstances (an anxious 21 year old pregnant woman who was desperate to fasten her seatbelt who had pulled on it too hard causing it to jam) to be sufficiently calm and collected to wait for another opportunity to fasten her seatbelt. Accordingly, the Full Court rejected any finding of contributory negligence.

The High Court

Justices French CJ, Kiefel, Bell, Keane and Gordon of the High Court considered the second limb of the section 47 issue, that is, whether the Plaintiff had rebutted, on the balance of probabilities, that she could not reasonably be expected to have avoided the risk of riding with the intoxicated insured driver. It ought to be noted that section 48(3)(b) of the CLA (Qld) refers to ‘could not reasonably be expected to have avoided relying on the Defendant’s care and skill’.

The High Court held:

Section 47(2)(b) is concerned with the reasonable evaluation of the relative risks of riding with an intoxicated driver or taking an alternative course of action … it contemplates an objectively reasonable evaluation of the relative risks. Section 47(2)(b) contemplates the possibility that it may be reasonable for a plaintiff to decide not to avoid the risk of riding with an intoxicated person because it may reasonably be assessed as the less risky of two unattractive alternatives. It does not contemplate that a plaintiff be confronted with "no choice" but to ride with the intoxicated driver; nor does it contemplate the most reasonable evaluation of which a person whose capacity for reasonable evaluation is diminished is capable.[4] [emphasis added]

Accordingly, the High Court accepted that the law does not require a Plaintiff to be confronted with a situation where he or she had ‘no choice’ but to accept the risk of riding in the car with an intoxicated driver.  Nor does it contemplate a subjective reasonable evaluation for a person whose capacity for reasonable evaluation is diminished. The High Court gave this example in explaining that logic:

For example, if a person suffering from a medical condition, and subject to episodic disabling symptoms, were to be confronted with the choice of an arduous trek out of a wilderness as the only alternative to accepting a lift with a drunk driver, that person might reasonably choose to accept the lift rather than be left at the risk of the occurrence of the episode in the wilderness where he or she would have no recourse to assistance; whereas a risk-laden decision by the same person to accept a lift with a drunk driver in a busy urban area would not be "reasonable" simply because it was made while the person was, because of stress associated with a particular episode, prevented from making a reasonable evaluation of the relative risks. That is to say, the circumstance that a person is incapable of making a reasonable decision at the relevant time has no bearing on the reasonableness or otherwise of the decision actually made.[5]

Accordingly, turning to the present case, the High Court held:

The circumstance that Ms Chadwick felt helpless, anxious and confused has nothing to do with a reasonable evaluation of relative risk. Ms Chadwick could reasonably be expected to have walked back into the township in order to avoid the risk of riding with Mr Allen if walking back to town and the hotel could reasonably have been assessed as a less unsafe course of conduct.

The High Court accepted the trial judge’s conclusion that it was not unreasonable for the Plaintiff to have no clear appreciation of her closeness to the township or her hotel. The High Court noted the Plaintiff had driven out of town under the direction of the insured driver and Mr Martlew and had followed a series of confusing directions for 10 – 15 minutes such that there was no reason why she should have attended closely to the course that she had taken while driving the vehicle under their directions. The High Court held:

Reasonableness does not require constant vigilance as to the possibility of an emergency and a photographic memory of one's surroundings.

It could reasonably be expected that a reasonable person in Ms Chadwick's position would have taken a moment to apprise herself of her geographical situation to determine whether it was reasonably safe to walk back to town and the hotel. But a reasonable person in the position of Ms Chadwick would not, by "taking a moment", necessarily have appreciated that she was a relatively easy walk from the hotel. The trial judge found as a fact that Ms Chadwick did not know where she was, and did not appreciate how close she was to the township and the hotel; and it cannot be said that her imperfect understanding of her situation was unreasonable. A person with the limited factual information available to Ms Chadwick might reasonably have formed the same appreciation of the situation. A person does not make an unreasonable choice because he or she acts upon imperfect knowledge if perfect knowledge is not reasonably available.[6]

The High Court also accepted that it was open to the Plaintiff to assume that she would be abandoned by the insured driver if she did not get into the car because he had not shown reasonable concern for her safety on previous occasions. The Court succinctly put it this way:

An expectation that she would not be abandoned would have been an unreasonable expectation of the triumph of hope over experience.[7]

Ultimately, the High Court found that the Plaintiff as a young pregnant woman (who was therefore vulnerable to more serious consequences of an assault by a stranger than otherwise would have been the case) on a dark and unfamiliar country road an uncertain distance from town in the early hours of the morning reasonably evaluated a real risk of harm, either from strangers or from the difficulties of walking in unfamiliar territory over an indeterminate distance in the dark. The High Court held:

the substantial risk of riding with Mr Allen could reasonably be regarded as lessened to a relatively acceptable level by reason of the absence of other vehicular traffic on the roads at the time. On a reasonable evaluation of these facts and the relative risks associated with them, Ms Chadwick could not have been expected to have avoided the risk of driving with Mr Allen.[8][emphasis added]

The High Court also addressed the section 49 ‘seatbelt’ issue and upheld the trial judge’s finding that the Plaintiff did have an opportunity to fasten the seatbelt and so therefore contributory negligence was assessed at 25%.

Summary

Clearly each case will turn on its own facts and the circumstances of each matter must be considered in determining ‘what is reasonable’.

Accordingly, in assessing any case involving a Plaintiff passenger who relied upon the care and skill of an intoxicated driver, the circumstances in which the Plaintiff came to be in that ‘predicament’ must be explored to ascertain whether or not it was reasonable in all the circumstances for the Plaintiff to take the risk of riding with a drunk driver.  Was it the ‘reasonable’ lesser of two evils on the known facts?

This case also highlights that despite the onus of proof resting with the Plaintiff to rebut the presumption of contributory negligence, from a practical perspective the pendulum of proof seemingly swings back to the Defendant asserting contributory negligence to establish that the Plaintiff had some other reasonable option (other than a ride with a drunk driver).