AAMI Limited v Hain

AAMI Limited (the appellant insurer) appealed a decision of the District Court of New South Wales concerning a motor accident in which the respondent, Mr Hain, was injured while a passenger in a vehicle driven by an intoxicated driver. The dispute centred on whether Mr Hain was contributorily negligent by accepting a lift from the driver, thereby disentitling him to damages under section 138(2)(b) of the *Motor Accidents Compensation Act 1999* (NSW).

The Court of Appeal was required to determine whether Mr Hain ought to have been aware of the driver's impairment and, consequently, whether an ordinary person in his position would have foreseen that accepting the lift exposed them to injury. This involved an assessment of the knowledge available to Mr Hain at the time he entered the vehicle and the objective foreseeability of risk.

The Court of Appeal upheld the District Court's finding that Mr Hain was not contributorily negligent. Their Honours reasoned that the evidence did not establish that Mr Hain was aware, or ought to have been aware, of the driver's intoxication to the extent that it would have made an ordinary person in his position foresee the risk of injury. The appeal was therefore dismissed.