Allen v Chadwick [2015] HCA 47 – getting in a car with an intoxicated driver and failing to put on seat belt – contributory negligence

The law often does not reflect ethics, morals or societal expectations. If you did not learn this at law school, you will quickly learn this as a junior lawyer. One reason why the law often falls short is the need to attribute responsibility. Attributing responsibility can be a very black and white exercise whereas real life is often more complex. There is no better example than the various civil liability regimes in Australia. In December 2015, the High Court handed down the case of Allen v Chadwick [2015] HCA 47 (Allen v Chadwick) which concerned contributory negligence of an injured person under the Civil Liability Act 1936 (SA) (Civil Liability Act). The case involved chilling facts where a pregnant woman who had been drinking and was in a car with her heavily intoxicated partner became paraplegic after her partner drove the car into trees. The legal question before the High Court was the extent the woman could be held contributory negligent for knowingly travelling in a car with an intoxicated driver and failing to wear a seatbelt.

Facts

In March 2007 (yes, it took the case 8 years to get to the High Court, which is not unusual) Ms Chadwick (who was pregnant at the time) and Mr Allen went on a weekend getaway to the Yorke Peninsula with their 5 year old daughter. They met with Mr Allen’s school friend Mr Martlew and his two children aged 3 and 6 and booked two motel rooms attached to the Port Victoria Hotel. After the children had been put to bed, the adults moved to the Port Victoria Hotel. Mr Allen and Mr Martlew had been drinking most afternoon and continued to drink at the Port Victoria Hotel. There was some evidence that Ms Chadwick had also been drinking, though in lesser amounts. After the Port Victoria Hotel closed, they moved to the veranda area near the motel rooms. At about 1:30am, the adults decided to go for a drive to look for some cigarettes. Mr Allen and Mr Martlew were heavily intoxicated.

Ms Chadwick drove initially for about 15 minutes, with loud music playing and Mr Allen and Mr Martlew screaming directions at her. Ms Chadwick stopped the car at some point on the highway out of town as she needed to relieve herself. On returning to the car Mr Allen was in the driver’s seat. On asking Mr Allen to get out, Mr Allen screamed at Ms Chadwick to “get the fuck in the car”. Ms Chadwick got in the car, attempting and then abandoning her attempts to put on a seatbelt. Mr Allen took off, gaining speed into town, where he did a series of U-turns before driving out of the town, off the road and hitting trees. On impact, Ms Chadwick was thrown out the rear driver’s side of the car. She was air lifted to the Royal Adelaide Hospital. Her injuries caused Level 3 paraplegia, permanently confining Ms Chadwick to a wheelchair.

In his criminal case, Mr Allen pleaded guilty to a charge of aggravated harm caused by dangerous driving, and in January 2009 was sentenced to a suspended prison term of three years and four months and disqualified from holding a driver’s licence for five years.

Contributory negligence in the Civil Liability Act

In real life, several factors can cause an outcome. In the legal sphere, where attributing responsibility to an individual with legal capacity is everything, it can be difficult for the law to meet reality. One way in which the law attempts to meet reality in the Civil Liability Act is through the concept of contributory negligence. Where a person is found to be contributory negligent, the damages they receive will be reduced proportionately. Contributory negligence is defined in s.3 as “a failure by a person who suffers harm to exercise reasonable care and skill for his or her own protection or for the protection of his or her own interests”. The Civil Liability Act creates presumptions of contributory negligence in certain situations. The two relevant presumptions in Allen v Chadwick are travelling with an intoxicated driver and failing to wear a seatbelt:

1.       Travelling with intoxicated driver (s.47)

Section 47(1) creates a presumption of contributory negligence if:

(a)         the injured person— 

(i)         was of or above the age of 16 years at the time of the accident; and 

(ii)         relied on the care and skill of a person who was intoxicated at the time of the accident; and 

(iii)         was aware, or ought to have been aware, that the other person was intoxicated; and 

(b)         the accident was caused through the negligence of the other person; and 

(c)         the defendant alleges contributory negligence on the part of the injured person, 

contributory negligence will, subject to this section, be presumed. 

Where the person was a passenger in a motor vehicle the person is presumed to rely on the care and skill of the driver (s.47(4)). Ordinarily the fixed statutory reduction for contributory negligence under s.47 is 25%. However, in the case of a motor accident, where the blood alcohol concentration was .15g/100mL or more, or the driver was so much under the influence of intoxicating liquor or drug as to be incapable of exercising effective control of the vehicle, the statutory reduction in the assessment of damages is increased to 50% (s.47(5)). An exception to the presumption of contributory negligence exists where the person could not reasonably have been expected to have avoided the risk (s.47(2)(b)).

Essentially, unless an exception can be made out, in situations where a person is injured in a car crash where they were aware or ought to have been aware a person was intoxicated, they will be held 50% responsible for the situation under the Civil Liability Act. This is a law not many people who get in cars with intoxicated drivers are aware of. The law assumes an injured person was 50% responsible when they are injured in a car crash, simply because the person decided to get in the car and had knowledge or ought to have knowledge of the fact the driver was intoxicated.

2.       Failing to wear a seatbelt (s.49)

Section 49 creates a presumption of contributory negligence where a person is injured in a motor vehicle accident and is not wearing a seatbelt. The fixed statutory reduction in the assessment of damages is 25% (s.49(3)). An exception to the presumption exists where it can be established on the balance of probabilities that the injured person could not reasonably be expected to have avoided the risk.

Legal question before the High Court

The two questions before the High Court were:

1.       Was the s.47 defence made out in that “the injured person could not reasonably be expected to have avoided the risk”; and

2.       Was the s.49 defence made out in that “the injured person could not reasonably be expected to have avoided the risk.

Section 47 travelling with an intoxicated driver

The facts established that before Ms Chadwick got in the car with Mr Allen driving, the car was situated about 200m away from the town on the highway. The immediate surrounds were shrubbery and trees. It was dark and an uncertain distance from the township in the early hours of the morning. Ms Chadwick was a young woman who was pregnant and her children were by themselves at the motel. The High Court held in their single, unanimous judgment, that the defence in s.47(2)(b) is concerned with the “reasonable evaluation of the relative risks of riding with an intoxicated river or taking an alternative course of action”. It requires an objective evaluation of the relative risks and contemplates a person may decide to get in a vehicle with an intoxicated driver where it may reasonably be assessed to be less risky than other unattractive alternatives. The test is objective, so subjective characteristics of an individual such as their hysteria, mental illness or personality are irrelevant to the s.47(2)(b) test. In weighing up the risks in Ms Chadwick’s case, the High Court observed that given the facts, there was a real risk of harm from strangers or the risk of walking over unfamiliar terrain in the dark if Ms Chadwick had not got in the car, and that the substantial risk of riding with Mr Allen was reduced by the absence of other traffic. The High Court held Ms Chadwick could not have been expected to avoid the risk of travelling with Mr Allen and her damages will not be reduced by 50% under s.47.

Section 49 failing to wear a seatbelt

At the trial before the District Court, a 25% reduction in damages was applied, as Ms Chadwick was not wearing her seatbelt and the defence of not reasonably being expected to have avoided the risk was not made out, as there were straight sections of road in which Ms Chadwick could have put her seatbelt on, and her inability to do so was found to be related to her own anger at Mr Allen and her pulling the straps too hard. The majority of the Full Court of the Supreme Court overturned the District Court’s decision and held that Mr Allen’s erratic driving caused the seatbelt mechanism to lock, and that the defence in s.49(2) of not reasonably being expected to avoid the risk was made out.

In deciding whether Ms Chadwick was prevented by Mr Allen from fastening her seatbelt, the High Court favoured the trial judge’s approach, as the trial judge had heard Ms Chadwick’s evidence first hand. The High Court also considered whether the “act of a stranger” defence was available. The “act of a stranger” defence was developed in the South Australian case of Mayer v Merchant (1973) 5 SASR 567 where it was said it is normally a defence to a criminal charge where the “forbidden act occurred as the result of an act of a stranger...over which the defendant had no control and against which he could not reasonably have been expected to guard”. Citing Norcock v Bowey [1966] SASR 250, the High Court held that the defence was not made out as it was not enough to show reasonable care had been taken, the circumstances must have been completely beyond the person’s control.

Lessons to learn

From a legal perspective, Allen v Chadwick confirms that the test for the defence in s.47 is an objective test that requires the weighing of different risks. It also confirms that the “act of a stranger” defence requires circumstances to be beyond the person’s control, and is therefore a difficult defence to establish.

Practically speaking, Allen v Chadwick demonstrates why we should all think carefully before getting in the car with an intoxicated person. The South Australian civil liability regime will automatically apply the 50% reduction in s.47 unless the defence can be established. Similarly, the threshold for the defence in s.49 for not using a seatbelt appears to be high. It is not an excuse to be fearfully pulling at your seatbelt and eventually giving up, even if the vehicle is being driven dangerously at timess.