HCA: rebutting the statutory reduction for intoxication when injured as a passenger

Allen v Chadwick [2015] HCA 47 (9 December 2015)

The respondent plaintiff, Danielle Chadwick, was thrown from the back seat of a car being driven by the appellant, Alex Allen. Ms Chadwick sustained serious spinal injuries which rendered her paraplegic. In dispute was the reduction for driving with an intoxicated driver (BAC 0.229%) and failing to wear a seatbelt.

The plurality High Court helpfully considered some of the common arguments made by injured passengers of vehicles driven by an intoxicated driver and whether the injured passenger “could not reasonably be expected to have avoided” being a passenger in the vehicle driven by an intoxicated driver and its effect on the deemed statutory contribution common to many jurisdictions.


I refer you to the facts as recited in the judgment summary:

At approximately 2 am on 12 March 2007, the appellant, the respondent and the appellant’s friend went for a drive around Port Victoria, South Australia. The respondent was driving, and the appellant and his friend had been drinking alcohol. After about 15 minutes, the respondent stopped the car on the side of the road and went to urinate behind some bushes. When she returned to the car, the appellant was in the driver’s seat and insisted that she get in the car, which she did. The car was outside the township and approximately 500 metres from the Port Victoria Hotel, where the group was staying. It was dark, and the respondent gave evidence that she was disoriented and did not know how near she was to the hotel. The appellant drove erratically for several minutes, during which time the respondent did not fasten her seatbelt. The respondent was flung from the car when it collided with a tree, and sustained spinal injuries that rendered her paraplegic. The appellant’s blood alcohol level was estimated to have been 0.229 per cent at the time of the accident.


The trial judge after a trial of 62 sitting days, which attracted criticism from the High Court, found that under ss 47(2)(b) of the Civil Liability Act 1936 (SA) (“the Act“) that Ms Chadwick could not have reasonably expected to have avoided the risk of riding with Mr Allen. However, the trial judge did find there was no defence under s 49 of the Act for not wearing a seatbelt and hence, apportioned 25% reduction in damages for Ms Chadwick’s contribution towards liability.


On appeal, the Full Court of the Supreme Court of South Australia upheld the ruling in relation to no reduction for intoxication, but set aside the finding on the seatbelt.


The High Court found Ms Chanwick was not contributory negligence under s.47 of the Act for being a passenger in a vehicle driven by an intoxicated driver, but was contributory negligent under s.49 for not wearing a seatbelt. The relevant paragraphs which follow are directed to the intoxication issue. The seatbelt issue was resolved by the High Court in accepting the trial judge’s factual finding that Ms Chadwick could have worn a seatbelt.


  1. The evaluation which s 47(2)(b) contemplates is an evaluation of relative risk in a given situation by the exercise of reasonable powers of observation and appreciation of one’s environment, as well as the exercise of a reasonable choice between alternative courses of action. Inputs into the evaluation contemplated by s 47(2)(b) are those facts, as they may reasonably be perceived, which bear upon the reasonable assessment of the relative risks of alternative courses of action. Those facts may include matters of objective fact personal to the plaintiff as well as aspects of the external environment. But subjective characteristics of the plaintiff which might diminish his or her capacity to make a reasonable evaluation of relative risk in the light of those facts are immaterial to the evaluation which s 47(2)(b) contemplates. Those subjective characteristics might include impetuosity, drunkenness, hysteria, mental illness, personality disorders or, as Kourakis CJ said[32], “witlessness”. 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. (Underlining added)


  1. Had the issue arisen under the common law unaffected by statute, a plaintiff’s subjective mental or emotional state would have been irrelevant to the reasonable choice expected of him or her. In Joslyn v Berryman[33], McHugh J, speaking of the position at common law, said:

“a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. A pedestrian or driver who enters a railway crossing in the face of an oncoming train cannot escape a finding of contributory negligence because he or she was not, but should have been, aware of the train. Nor does it make any difference that the pedestrian or driver had defective hearing or sight. Contributory negligence is independent of ‘the idiosyncrasies of the particular person whose conduct is in question’[34].”

  1. Nothing in s 47(2)(b) (or the Act more generally) suggests a statutory purpose to alter the law in favour of making an allowance for a plaintiff’s subjective difficulties of cognition and decision-making.

54.It is important here to bear in mind that a defendant who inflicts harm on another by unreasonable conduct is not excused from liability in negligence because of a reduced personal capacity for reasonable decision-making[35]. Section 44 of the Act operates to apply the same rule to determining whether a plaintiff has been contributorily negligent. In either case, confusion or panic on the part of the actor does not reduce what reasonableness requires. To take into account a mental or emotional state which subjectively reduces the capacity for reasonable decision-making would be inconsistent with the objectively reasonable assessment of risk which s 47(2)(b) postulates.

55.The terms of s 47(2)(b) reflect the legislative adoption of a policy that, of those who suffer injuries in accidents, including motor vehicle accidents, only those injured as a result of a risk which they “could not reasonably be expected to have avoided” should be entitled to recover full damages from a defendant whose liability is to be met by the compulsory insurance scheme. The legislative determination that the full benefits of a claim in negligence covered by the scheme should not be available to those who have not acted as would reasonably be expected reflects a balancing of policy considerations including those which bear upon the viability of the scheme[36]. Sections 44 and 47 of the Act give effect to that balance.

  1. 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. In this regard, Mr Allen submitted that Kourakis CJ was right to hold that a reasonable person would have appreciated that the risk of getting into a car driven by Mr Allen was great[37]; would have surveyed her location and appreciated her proximity to the township[38]; and would not have been disoriented[39]. While the first of these propositions may be accepted, the second and third must be rejected.
  2. Mr Allen submitted that a reasonable person in Ms Chadwick’s position would not have been disoriented or confused, given her “objective proximity to residential areas” as found by the trial judge[40]. It was said that Ms Chadwick’s evidence that the car travelled away from the township for upwards of 10 to 15 minutes should not be accepted, given the trial judge’s adverse view of Ms Chadwick’s credibility and the conflicting evidence in Mr Martlew’s account. It was also said that there was street lighting visible in the distance from the location at which Ms Chadwick got into the car driven by Mr Allen; and that, in these circumstances, a reasonable person would have known and appreciated that she was not far from the township and hotel. These submissions do not proceed upon a sound factual foundation. Once it is accepted that, as the trial judge found, Ms Chadwick did not know where she was, then the availability of a relatively low-risk alternative to travelling back to the hotel in the vehicle with Mr Allen was not reasonably apparent. That finding was not disturbed by the Full Court, and no sufficient reason has been shown for this Court to set it aside[41].
  3. The reasonable expectation with which s 47(2)(b) is concerned involves the exercise of reasonable powers of observation and appreciation of one’s environment as well as the exercise of a reasonable judgment of the relative risk of alternative responses to the environment as observed and understood. That having been said, it was not unreasonable for Ms Chadwick to have had no clear appreciation of her proximity to the township from the location at which Mr Allen took over the driving of the vehicle. On the evidence accepted by the trial judge, she had driven out of the town under the direction of Mr Allen and Mr Martlew, and had followed a series of confusing directions for 10 to 15 minutes. There was no reason why she should have attended closely to the course she had taken while driving the vehicle under their directions. Reasonableness does not require constant vigilance as to the possibility of an emergency and a photographic memory of one’s surroundings.
  4. 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.
  5. As to the view of Kourakis CJ that Ms Chadwick could not reasonably have assumed that she would be abandoned by Mr Allen if she did not get in the car as he had ordered, it must be said that there could be nothing unreasonable in the assumption that Mr Allen’s reaction to a rebuff would not involve solicitude for Ms Chadwick’s safe return to the hotel. Mr Allen’s conduct towards her during the hours prior to the accident, and his peremptory demand that she get in the car, notwithstanding her reasonable objection to doing so, were hardly suggestive of a likelihood that he would behave towards her with reasonable concern for her safety. His insistence that he drive was itself manifestly inconsistent with such a possibility. An expectation that she would not be abandoned would have been an unreasonable expectation of the triumph of hope over experience.
  6. In summary, the relevant inputs into the evaluation of relative risk required by s 47(2)(b) included the facts that Ms Chadwick was a young woman, who was pregnant (and therefore vulnerable to more serious consequences of an assault by a stranger than would otherwise have been the case) and on a dark and unfamiliar country road an uncertain distance from the township in the early hours of the morning. Those facts could reasonably lead to an evaluation of a real risk of harm, either from strangers or from the difficulties of a walk in unfamiliar territory over an indeterminate distance in the dark. In addition, 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.

David Cormack – Brisbane Barrister & Mediator


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