On 9 December 2015, the High Court handed down a unanimous decision in a case involving a young woman (Ms Chadwick), who suffered significant spinal injuries in a car accident, and whether she ought to have her damages reduced for contributory negligence.
Circumstances of the accident
The accident occurred in the early hours of 12 March 2007. Prior to the accident, Ms Chadwick was driving around the outskirts of Port Victoria. Ms Chadwick’s de facto partner (Mr Allen) and a friend (Mr Martlew), who had both been drinking for most of the day (which Ms Chadwick knew) were riding as passengers and directing Ms Chadwick because she was unfamiliar with Port Victoria. Evidence was led that Mr Allen and Mr Martlew were clearly intoxicated.
After 10 to 15 minutes of driving, Ms Chadwick pulled the car over so that she could relieve herself behind some bushes that were next to the road. When she returned to the car, she found Mr Allen sitting in the driver’s seat. There was an argument between the two. Mr Allen refused to leave the driver’s seat and aggressively told Ms Chadwick to get in. Ms Chadwick gave evidence that it was extremely dark and she had no idea where she was relative to the motel where she was staying or the township of Port Victoria. On that basis, she decided to get back into the car. She did not have time to fasten her seatbelt before Mr Allen took off at high speed.
Mr Allen drove aggressively and erratically. After only a short time, he lost control of the vehicle and struck a tree. The force of the car striking the tree caused Ms Chadwick to be catapaulted from the car. She hit the ground and suffered a significant spinal injury, rendering her paraplegic.
Liability was not in issue. However, Mr Allen (through his insurer) argued that Ms Chadwick’s damages ought to be reduced for contributory negligence because firstly, she had chosen to ride in a car with an intoxicated driver and secondly she had failed to wear a seatbelt.
There are specific provisions contained within the South Australian Civil Liability Act (SACLA) which dictate the application of contributory negligence in the above circumstances. The High Court was asked to consider the proper application of those provisions.
At trial, Ms Chadwick’s damages were reduced by 25% for contributory negligence due to her failure to wear a seatbelt. No further reduction was made in relation to Ms Chadwick knowingly riding in a car being driven by an intoxicated driver.
The Full Court of the South Australian Supreme Court overturned the trial judge’s decision and made no reduction for contributory negligence.
Knowingly travelling with an intoxicated driver
The relevant provision to be considered by the High Court was section 47 of the SACLA which is analogous to sections 48 and 49 of the Civil Liability Act 2003 (Qld) (CLA). That section gives rise to a presumption of contributory negligence where an injured person relies on the care and skill of a person known to be intoxicated. Similar to the situation under the CLA, an injured person can rebut the presumption under section 47 of the SACLA if they can establish that either the intoxication did not contribute to the accident or the injured person could not reasonably be expected to have avoided the risk.
Both the trial judge and the Full Court found that while Ms Chadwick knew that Mr Allen was intoxicated and the intoxication contributed to the accident, Ms Chadwick could not reasonably have been expected to avoid the risk of driving with Mr Allen. For that reason, the presumption of contributory negligence was successfully rebutted.
The High Court strongly criticised the approach adopted by the majority in assessing the objective reasonableness of Ms Chadwick’s decision to get back into the car with Mr Allen driving. According to the High Court, to take into account a mental or emotional state (as the majority of the Full Court had seemingly done) which subjectively reduces the capacity for reasonable decision-making is inconsistent with the objectively reasonable assessment of risk required under the relevant provision. On that basis, the High Court found that Ms Chadwick’s feelings of helplessness, anxiety and confusion (which were given weight by the majority of the Full Court) were irrelevant to the reasonable evaluation of relative risk between accepting to ride in a car with the intoxicated Mr Allen or attempting to find her own way home in an unknown town by foot.
Having rejected the Full Court’s reasoning on the matter, the High Court undertook its own objective assessment of the situation in order to determine whether Ms Chadwick could not reasonably have been expected to avoid the risk as required under section 47 of the SACLA. The High Court concluded that the relevant factual elements in objectively assessing the risk were the fact that Ms Chadwick was a pregnant young woman, on a dark and unfamiliar rural road and some unknown distance from her motel. Objectively assessing those facts, the High Court found that it was reasonable to consider that the risk posed by attempting to walk home was greater than that posed by riding with Mr Allen, particularly in circumstances where there was limited traffic on the road at that time of the morning.
On this basis, the High Court found that the presumption under section 47 of the SACLA had been successfully rebutted and therefore, it was not appropriate to reduce Ms Chadwick’s award for damages on the basis that she had knowingly travelled in a car with an intoxicated driver.
Section 49 of the SACLA provides that contributory negligence will be presumed if an adult is injured in a motor accident and is not wearing a seatbelt. The presumption is stated to be irrebutable save for one exception which did not apply to the present circumstances.
The High Court was called to decide on whether to accept the Full Court’s decision to uphold “act of a stranger” defence to excuse Ms Chadwick’s failure to wear a seatbelt. The “act of a stranger” defence has developed in the South Australian jurisdiction and operates to excuse a purported wrongdoer when a forbidden act occurs as a result of a stranger. Although generally used in a criminal law context, the Full Court found that it to be applicable in the present case in circumstances where Ms Chadwick was said to have been prevented from putting on her seatbelt as a consequence of Mr Allen’s reckless driving.
The High Court overturned the Full Court’s decision on this issue, noting that the trial judge had made an undisturbed finding of fact that Ms Chadwick had not been prevented from fastening her seatbelt by Mr Allen’s bad driving.
The High Court found that the question was not whether Ms Chadwick’s failure to fasten her seatbelt was an understandable, or even reasonable, response to Mr Allen’s driving. Rather, the question was whether Mr Allen had prevented Ms Chadwick from fastening her seatbelt which, according to the undisturbed finding of fact made by the trial judge, he had not.
On this basis, the High Court found that the presumption under section 49 could not be rebutted and that Ms Chadwick’s award ought to be reduced by 25% as provided for under that provision.