Allen v Chadwick [2014] SASCFC 100
Recently, the Full Court of the South Australian Supreme Court considered contributory negligence in circumstances where the Plaintiff failed to wear a seatbelt and the driver was intoxicated.
The Trial Judge concluded that the defendant was negligent in the driving of a motor vehicle, causing severe personal injury to the plaintiff, in the form of spinal injuries resulting in permanent paraplegia. Damages were assessed at $2,392,486.65. This was reduced by 25% for contributory negligence on account of the plaintiff’s failure to wear a seatbelt.
On appeal, the defendant argued that the plaintiff’s damages should have been further reduced by 50% for contributory negligence for having relied on the care and skill of the defendant, whom she was, or ought to have been, aware was intoxicated at the time. The award of damages was also appealed.
By cross-appeal, the plaintiff challenged the reduction of 25% on account of the failure to wear a seatbelt.
The plaintiff joined the defendant and a friend in the bar of the hotel where they were staying. At some time, it was decided to go for a drive to buy cigarettes. The plaintiff drove, following the haphazard directions of the defendant and friend. They left Port Victoria and travelled to the outskirts of town. The plaintiff stopped the vehicle in an area of darkness to relieve herself. When she returned, the defendant was in the driver’s seat and refused to allow the plaintiff to drive. At this time, the plaintiff was not sure where she was, stating she was in the middle of nowhere and was concerned for the children left at the hotel. The plaintiff entered the rear passenger seat, with the vehicle moving off before the door had closed. She made a number of unsuccessful attempts to fasten her seatbelt. Shortly after the plaintiff entered the rear passenger seat, the defendant lost control of the vehicle, colliding with a tree, throwing the plaintiff from the vehicle.
The trial Judge concluded that the plaintiff had little choice but to enter the vehicle in the circumstances and, on balance, no person in the precarious situation the plaintiff found herself in, could reasonably be expected to have any practical alternative. It could not be said that the plaintiff was prevented from fastening her seatbelt in the moments leading to the collision. Therefore, the mandated statutory reduction of 25% applied. Further, the Judge found that the plaintiff relied on the care and skill of the defendant, that she ought to have been aware that he was intoxicated and that the accident was caused through the defendant’s negligence. As the defendant’s blood alcohol content exceeded 0.15 grams in 100 ml of blood, the increased statutory reduction of 50% applied.
On appeal, the Court held that it was open to the trial Judge to conclude, on balance, that the plaintiff could not reasonably be expected to have avoided the risk. With respect to the seatbelt issue, the trial Judge concluded that the plaintiff had not established on balance that she was prevented from fastening her seatbelt.
The plaintiff contended that her failure to wear a seatbelt was due to the defendant’s erratic driving, the effect of the driving on the functionality of the seatbelt mechanism and her panicked repeated attempts to operate the mechanism.
The Court found that “this is not a case where Ms Chadwick simply refused, through laziness, inadvertence, carelessness or simple obduracy, to wear the seatbelt—the paradigm cases embraced by section 49 of the Civil Liability Act.” It was not accepted that the section was intended to operate in the circumstances that confronted the plaintiff.
The Court was satisfied that the plaintiff had made out the stranger exception to s.49 on the balance of probabilities and set aside the trial Judge’s finding of contribution due to the failure to wear a seatbelt.
As a result, on appeal it was held that:-
- The Judge was correct to conclude that the plaintiff could not reasonably be expected to have avoided the risk of re-entering the vehicle.
- The Judge erred in reducing the damages by 25% due to failure to wear a seatbelt. The mandatory statutory reduction under section 49 will not apply where a plaintiff’s failure to wear a seatbelt occurred in circumstances of involuntariness or as a result of the unlawful act of another person.
Accordingly, the Court of Appeal set aside the District Court judgment. The plaintiff was entitled to recover damages without any reduction for contributory negligence. However, the damages (gratuitous services, case management, accommodation and transport) was reduced.
