Chadwick's choice…to drive, or not to drive…with a drunk driver

12 April 2016

The recent High Court decision in Allen v Chadwick [2015] HCA 47 highlights the Court’s current approach to interpreting and applying legislative provisions relating to presumptions of contributory negligence where an injured person knowingly rides in a vehicle with an intoxicated driver; and fails to engage their seatbelt.


On 12 March 2007 Ms Danielle Chadwick, was thrown from the back seat of a car being driven by Mr Alex Allen (“the accident“). Ms Chadwick sustained serious spinal injuries which rendered her paraplegic. At the time of the accident, Mr Allen’s blood alcohol level was 0.229%. It is not disputed that Mr Allen’s negligent driving caused Ms Chadwick’s injuries.

The issue in dispute was whether Ms Chadwick was contributorily negligent, firstly, for electing to travel in a vehicle driven by a person whom she knew was intoxicated, and secondly, for failing to engage her seatbelt.

Section 47(1) of the Civil Liability Act 1936 (SA) (“the Act“) creates a presumption of contributory negligence where an injured person relied on the care and skill of a person who was intoxicated at the time of the accident, if the injured person knew, or ought to have known, of that person’s intoxication.

Section 47(2)(b) of the Act provides an exception insofar as the injured person may rebut the presumption of contributory negligence by establishing, on the balance of probabilities, that the injured person could not reasonably be expected to have avoided the risk. The degree of reduction in damages depends upon the concentration of alcohol in the driver’s blood, in this case such reduction is in the order of 50%.

Section 49 of the Act establishes a presumption of contributory negligence on the part of a person injured in a motor vehicle accident, and a compulsory reduction in damages of 25%, where that person was not wearing a seatbelt at the time of the accident.

At the time of the accident, Ms Chadwick:

  • Was a 21 year old pregnant woman in the company of two older men at 2.00am in the morning; and
  • Was in a strange place and stranded on the outskirts of a remote country town in a darkened area
Decision at first instance

As to the issue of contributory negligence, His Honour Judge Tilmouth of the District Court of South Australia found that, in the circumstances in which Ms Chadwick found herself, as noted above, she could not reasonably be expected to have avoided the risk of riding with Mr Allen. Accordingly, His Honour declined to reduce Ms Chadwick’s damages by 50% despite S47 of the Act.

Judge Tilmouth did, however, reduce Ms Chadwick’s damages by 25% pursuant to S49 of the Act because she was not wearing a seatbelt at the time of the accident. His Honour did not accept the evidence of Ms Chadwick that the seatbelt mechanism was inoperable due to the erratic driving of Mr Allen.

Supreme Court appeal

On Mr Allen’s appeal to the Full Court of the Supreme Court of South Australia, the Court by majority (Gray and Nicholson JJ, Kourakis CJ dissenting) upheld the Trial Judge’s decision in relation to the S47 issue. On Ms Chadwick’s cross-appeal, the Court unanimously reversed the Trial Judge’s conclusion in relation to the S49 issue, on the basis that Ms Chadwick’s actions were a direct and natural response to Mr Allen’s erratic driving.

High Court appeal

Mr Allen appealed to the High Court of Australia. Relevantly, Mr Allen argued that the majority in the Supreme Court erred in fixing upon Ms Chadwick’s personal characteristics. He argued that the proper approach, once S47 is engaged, is for the “idiosyncrasies of the particular person whose conduct is in question” to be disregarded in the evaluation of whether the exception posed by S47(2)(b) applies.

The High Court of Australia (French CJ, Kiefel, Bell, Keane and Gordon JJ), rejected this argument and upheld the Trial Judge’s decision, concluding that S47(2)(b) requires consideration to be given to the facts and circumstances surrounding riding in a vehicle driven by an intoxicated person, which could reasonably lead to an evaluation of a real risk of harm. 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. As a result, it was held that Ms Chadwick could not have been expected to have avoided the risk of driving with Mr Allen.

The High Court, whilst dismissing the appeal on the S47 issue, found that the appeal should be allowed in relation to the S49 issue. The Court held that the Trial Judge was sceptical of Ms Chadwick’s evidence generally and there were good reasons not to accept her contention that she was entirely prevented at all times from fastening the seatbelt, as this was inconsistent with expert evidence that she would have had opportunities to fasten the seatbelt.

Outcome and risk for insurers

In this case, the Court has embarked upon an assessment of the issue of contributory negligence, where alcohol is involved, firstly having regard to the objective evidence and then a subjective assessment based on the actual factual matrix.

With regard to the application of the legislation relating to seatbelts the Court has adopted a strict objective approach based on the evidence, namely the evidence established that Ms Chadwick did have an opportunity to fasten her seatbelt whilst riding in the vehicle.

From this case we ask whether the Court is saying that it is alright to drive with a drunk driver so long as you are wearing a seatbelt?

This article was written by Anthony Hillary, Partner.

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