Accepting a lift with a drunk driver: Alex Allen v Danielle Chadwick  HCA 47
The High Court recently (9 December 2015) looked at whether, and to what extent, a passenger could be said to be ‘contributory negligent’ if they accept a ride with a driver who they know to be under the influence of alcohol. As a general proposition insurers have always claimed a high reduction (in the order of 50%) from any claim by a claimant injured in a car driven by a drunk driver. In this particular case the passenger (Ms Mitchell) had been drinking for most of the day with the driver (Mr Allen) before going out for a drive well after midnight. Ms Mitchell was driving, stopped the car on the outskirts of an unfamiliar town, and then Allen got into the driver’s seat, ordered Mitchell into the back seat declaring that he would otherwise leave her behind, set off, drove erratically, and caused an accident. In the accident Mitchell was thrown from the car and suffered catastrophic injuries. The insurer claimed a 50% reduction for accepting a lift from Allen because she knew that he was drunk and she should not have got into the car.
At trial there was NO issue that Mitchell should have known that Allen was drunk. That fact was accepted. That gave rise to a presumption in law that Mitchell’s claim had to be reduced for contributory negligence. The insurer claimed a 50% reduction. The trial went ahead on whether Mitchell, in spite of knowing that Allen was drunk, could nonetheless be excused for getting into the car. The reasoning was along the line that the risk to Ms Mitchell of being abandoned on the side of the road was worse than the risk of getting into the car knowing that Allen was drunk. At the time Mitchell was 21 years old, she was pregnant, they were in an unfamiliar place, it was the middle of the night, they were in an unfamiliar place with no houses around, and Allen had threatened to leave her behind.
The Court accepted that the circumstances had to be taken into account. However there is a difference between ‘objective’ and ‘subjective’ circumstances: ‘personal circumstance’, or, subjective factors, are (in line with cases such as Jocelyn v Berryman) not to be taken into account. The fact that Ms Chadwick felt panicked about being abandoned and helpless and confused because she had no idea where she was, are completely irrelevant. The fact that her decision making process was impaired by panic, confusion, alcohol etc is absolutely not relevant. Reasonably she could have chosen to walk back into town and that would have been a far less risky choice than getting into the car with Allen! However the Court said that factors which are objectively reasonable should be taken into account: if a person in the same position would have reasonably felt panicked, confused etc, and on balance would reasonably have been expected to choose the risk of getting into the car as the lesser of the two risks, then the presumption of contributory negligence is rebutted. Given the facts of the case the High Court held that it was not unreasonable that a person finding themselves in Ms Chadwick’s situation would have got into the car with Allen as the lesser of the two risks. On that basis there was no deduction for contributory negligence.
The lesson from this case is that arguments about personal fears and impairments are not going to help a Claimant in an argument with an insurer. However if a Claimant can demonstrate that the circumstances in which they got into a car with a drunk driver were such that ‘objectively’ a person in the same situation would reasonable accept the lift as the lesser of the two risks (the risk of NOT taking the lift was objectively higher), then that Claimant would be a stronger position to fight a contributory negligence argument. Such factors could presumably be such things as being in a strange town, not knowing how to get back into town, being a long way out of town, threats, weather, lateness of the hour etc. There is no doubt that each case will have to be assessed on its own facts and as such if you need any advice please call one of our lawyers who will be happy to chat about your case.