Drunk passenger injured by a taxi – Whether contributory negligence by drunk passenger : Neeson v Lawler  WADC 160
On 22 December 2015 the District Court considered the case where a passenger was injured by a taxi driver. The passenger was standing outside of the taxi and chatting to the taxi driver through the open door. The taxi driver suddenly reversed and in so doing cause the door to hit the passenger which threw him to the ground. The passenger struck his head on the ground and suffered a fractured skull and various other injuries.
The taxi driver flatly denied that he had reversed or had hit the passenger. Rather he alleged that the passenger was intoxicated and had fallen on the driveway.
This case went to trial to decide who was telling the truth, and in brief, the passenger and his witnesses were found to not be credible and his claim was dismissed. However the Court made an interesting observation at the end of the judgment in relation to the intoxication presumption that is commonly argued by insurers in cases where Plaintiffs are found to be under the influence. There is a presumption of contributory negligence in the Civil Liability Act (section 5L(4)) which has been very difficult for Claimant’s to overcome and which is routinely used by insurers to apply a significant discount to claims where the Claimant is under the influence. In this case there was a strong suggestion that the passenger was very intoxicated. The issue of the presumption of contributory negligence was an issue, albeit it did not have to be decided because the claim was dismissed. Nevertheless and interestingly the Judge made a comment that had he found that the passenger was intoxicated (which seems likely had the passenger won his case) and that if the Taxi driver had in fact reversed with the passenger hanging onto the door thereby causing him to fall, that even in the face of the intoxication and the presumption applicable under the law, that the Court would not have found that the passenger in any way contributed to his own loss. There was no explanation for the Court’s reasoning behind that comment. However the comment seems to fit with the recent High Court decision (Neeson v Lawler) which held that while subjective factors are irrelevant, objective factors should be taken into account do rebut the presumption of contributory negligence. We assume that Court had in mind that in such as case a driver reversing while a passenger was hanging onto the door would foreseeably have caused injury irrespective of the alcohol (objective test). The comment is interesting in that Claimant’s should not automatically accept an insurer’s argument on the presumption of contributory negligence in the presence of intoxication. If there are objective factors which would reasonably have resulted in the accident and injury regardless of the alcohol, then Claimant’s should argue those factors in rebuttal of the presumption.
If you have been injured in an accident and the insurer is claiming that alcohol is a factor, then please contact Kakulas Legal for a no-obligation chat about your case.