From: Neil Foster <>
Date: 09/12/2015 04:47:13 UTC
Subject: ODG: HCA on intoxication and seatbelts in a motor accident

Dear Colleagues;
While it doesn’t break any new ground on common law principles, today’s decision of the High Court of Australia in Allen v Chadwick [2015] HCA 47 (9 December 2015) is of some interest in terms of the application of fairly common legislative provisions in Australian tort legislation these days dealing with the deeming of contributory negligence in the case of (1) riding with an intoxicated driver, and (2) failure to wear a seat belt.
Briefly, a young pregnant woman faced the prospect of being abandoned (as she thought) some miles from a remote town in the dark, or get into a car driven by someone she knew was drunk. When she got in she failed to put on her seatbelt. Both could be seen as acts of contributory negligence which contributed to the harm she suffered when the car shortly afterwards crashed and she was thrown out.
In relation to (1), the decision to get in the car, the relevant legislation would have required a reduction in damages of 50% unless she could show that she could not "reasonably be expected to have avoided the risk” by getting in the car. The trial judge found she had demonstrated this; the Full Court of the Sup Ct of SA agreed, though in formulating the test to be applied the High Court here said they made some misleading comments. The HC says that the test was not “subjective”, so it did not take into account whether the plaintiff was particularly “fearful” or the like; but it had to take into account the objective circumstances, and she was justified in the situation as she reasonably believed it to be, in getting in the car. (The car was in fact closer to the town than she thought, but the trial judge accepted her testimony that she was confused and did not know this.)
In relation to (2), the trial judge found that she had not been physically prevented from putting on the seatbelt due to the erratic driving; hence he had to apply a mandatory 25% deduction. The Full Court had over-ruled the trial judge on this point, but the High Court restored the verdict, saying that there were no good reasons to over-turn his findings of fact on the point.
The other disturbing feature of the case, illustrating once again the point that in this area of motor accidents tort law may not always be the best way to provide compensation, is the fact that the trial took 62 sitting days! A “litigious marathon”, as the HC joint judgment describes it at para [30].

neil foster 
Associate Professor
Newcastle Law School
Faculty of Business and Law

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