Allen v Chadwick

Case [2015] HCA 47

HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, KEANE AND GORDON JJ

ALEX ALLEN  APPELLANT

AND

DANIELLE LOUISE CHADWICK  RESPONDENT

Allen v Chadwick

[2015] HCA 47

9 December 2015

A14/2015

ORDER

1.Appeal allowed in part.

2.Set aside orders 1-4 of the Full Court of the Supreme Court of South Australia made on 10 December 2014 and, in their place, order that:

(a)the appeal be allowed in part;

(b)the cross-appeal be dismissed; and

(c)paragraph 1 of the order made by Judge Tilmouth on 19 November 2012 be varied by replacing the sum of $1,387,888.87 with the sum of  $1,223,287.74.

3.Appellant to pay the respondent's costs of and incidental to the appeal to this Court.

On appeal from the Supreme Court of South Australia

Representation

M C Livesey QC with B J Doyle for the appellant (instructed by Hunt & Hunt Solicitors)

R J Whitington QC with J M Atkins and B J Krupka for the respondent (instructed by Meller Olsson Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Allen v Chadwick

Torts – Negligence – Contributory negligence – Section 47 of Civil Liability Act 1936 (SA) ("Act") presumes contributory negligence of injured person who relied on care and skill of intoxicated person and who was aware or ought to have been aware that other person was intoxicated – Section 47(2)(b) of Act establishes exception where injured person could not reasonably be expected to have avoided risk – Where respondent travelled in car with intoxicated driver and suffered serious injuries – Whether respondent could reasonably be expected to have avoided risk – Proper construction of s 47(2)(b) of Act – Relevance of respondent's capacity to make reasonable assessment of relative risks – Relevance of subjective characteristics.

Torts – Negligence – Contributory negligence – Section 49 of Act presumes contributory negligence where person injured in motor vehicle accident not wearing seatbelt – Where respondent was not wearing seatbelt and suffered serious injuries in motor vehicle accident – Whether appellant's erratic driving prevented respondent from fastening seatbelt – Whether factual findings overturned on appeal – Relevance of "act of a stranger" defence.

Words and phrases – "act of a stranger", "could not reasonably be expected to have avoided the risk", "reasonable assessment of risk".

Civil Liability Act 1936 (SA), ss 3, 44(1), 47, 49.

  1. FRENCH CJ, KIEFEL, BELL, KEANE AND GORDON JJ.   On 12 March 2007, the respondent, Danielle Chadwick, was thrown from the back seat of a car being driven by the appellant, Alex Allen.  Ms Chadwick sustained serious spinal injuries which rendered her paraplegic.  At the time of the accident, Mr Allen's blood alcohol level was around 0.229 per cent.  It is not in dispute that his negligent driving caused Ms Chadwick's injuries. 

  2. The issues for determination by this Court are whether Ms Chadwick was contributorily negligent, first, for choosing to travel in the car driven by Mr Allen when…

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AGLC
Allen v Chadwick [2015] HCA 47
Case
[2015] HCA 47
Decision Date

CaseChat Overview and Summary

The case of *Allen v Chadwick* involved an appeal to the High Court of Australia concerning claims of negligence and contributory negligence. The respondent, Ms Chadwick, had suffered serious injuries when she travelled as a passenger in a car driven by the appellant, Mr Allen, who was intoxicated. Ms Chadwick also failed to wear a seatbelt during the journey. The primary dispute revolved around the application of sections 47 and 49 of the *Civil Liability Act 1936* (SA), which presume contributory negligence in certain circumstances.

The High Court was required to determine two main legal issues. Firstly, whether the exception to the presumption of contributory negligence under section 47(2)(b) of the Act applied, meaning Ms Chadwick could not reasonably have been expected to avoid the risk of travelling with an intoxicated driver. This involved considering the proper construction of section 47(2)(b) and the relevance of Ms Chadwick's subjective characteristics and her capacity to make a reasonable assessment of the risks. Secondly, the Court had to consider whether Ms Chadwick's failure to wear a seatbelt constituted contributory negligence under section 49 of the Act, and whether the appellant's erratic driving prevented her from fastening it, potentially invoking the "act of a stranger" defence.

The High Court found that the trial judge had erred in his construction of section 47(2)(b) by focusing on whether Ms Chadwick had "no choice" but to travel with the intoxicated driver, rather than on whether she could reasonably have been expected to avoid the risk. The Court clarified that the exception requires an objective assessment of whether a reasonable person in Ms Chadwick's position could have avoided the risk, taking into account her subjective characteristics. While the trial judge's factual finding that Ms Chadwick did not know her location was not disturbed, the Court held that this did not automatically mean she could not reasonably have been expected to avoid the risk. The Court also addressed the seatbelt issue, noting the trial judge's finding that Ms Chadwick had lied about the seatbelt mechanism being inoperable, but that her evidence regarding the driver's erratic driving preventing her from fastening it was accepted.

The High Court allowed the appeal in part, setting aside the orders of the Full Court of the Supreme Court of South Australia. The Court varied the damages awarded to Ms Chadwick, reducing the amount from $1,387,888.87 to $1,223,287.74, reflecting a revised assessment of contributory negligence. The appellant was ordered to pay the respondent's costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed in part.

2. Set aside orders 1-4 of the Full Court of the Supreme Court of South Australia made on 10 December 2014 and, in their place, order that:

(a) the appeal be allowed in part;

(b) the cross-appeal be dismissed; and

(c) paragraph 1 of the order made by Judge Tilmouth on 19 November 2012 be varied by replacing the sum of $1,387,888.87 with the sum of $1,223,287.74.

3. Appellant to pay the respondent's costs of and incidental to the appeal to this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL, KEANE AND GORDON JJ (dissent)
Section 50 of the Act provides for the assessment of damages in light of the operation of ss 47 and 49 of the Act in a given case. The operation of s 50 in this case is not controversial, and no more need be said of it.The decision of the trial judge The trial judge held that Ms Chadwick ought to have been aware that Mr Allen was intoxicated when she decided to ride with him driving the car[5]. Accordingly, s 47(1)(a)(iii) of the Act gave rise to the presumption of contributory negligence on her part.[5]Chadwick v Allen [2012] SADC 105 at [86]. Ms Chadwick contended that the exception in s 47(2)(b) of the Act applied in this case because, in the circumstances, she could not reasonably be expected to have avoided the risk of travelling with Mr Allen. The trial judge accepted the contention that the circumstances gave rise to the exception in s 47(2)(b), so that Ms Chadwick avoided the 50 per cent reduction in damages that would otherwise have applied pursuant to s 47(5) of the Act. Ms Chadwick also argued that her failure to wear a seatbelt did not constitute contributory negligence for the purposes of s 49 of the Act. In her pleading in reply she alleged that the seatbelt mechanism was inoperable. This allegation was not made out at trial, but Ms Chadwick gave evidence to the effect that the erratic driving of Mr Allen had made it impossible for her to engage the seatbelt mechanism. The trial judge rejected this evidence and held that Ms Chadwick was contributorily negligent for failing to wear a seatbelt. Accordingly, her damages were reduced by 25 per cent pursuant to s 49(3) of the Act. The trial judge observed of Ms Chadwick that: "She was demonstrably an unsatisfactory witness in relation to a number of key issues."[6] His Honour found that Ms Chadwick "lied profusely"[7]. Nevertheless, his Honour accepted as a fact that Ms Chadwick did not know where she was in relation to the town when she returned to the car to find that Mr Allen insisted upon driving[8]. As will be seen, that was an important finding of fact which was not disturbed on appeal.[6]Chadwick v Allen [2012] SADC 105 at [48].[7]Chadwick v Allen [2012] SADC 105 at [63].[8]Chadwick v Allen [2012] SADC 105 at [141]‑[142]. As to the application of s 47(2)(b) of the Act, the trial judge held that Ms Chadwick was[9]: "a 21 year old pregnant woman … with two older men at 2 am in the morning in a strange place, stranded on the outskirts of a remote country town in a darkened area, without appreciating that she was much nearer than she thought, and when no‑one was up or about."[9]Chadwick v Allen [2012] SADC 105 at [141]. His Honour went on to conclude that Ms Chadwick "objectively speaking … had little choice but to enter the vehicle", given the "precarious situation" in which she found herself[10]. The trial judge departed somewhat from the approach required by the text of s 47(2)(b) of the Act in referring to "an impossible situation or predicament in which no reasonable person placed in the precise position of the injured person, can avoid, or has no choice but to accept", the risk of riding with an intoxicated person[11]. To the extent that his Honour's reference to "no choice" departed from the language of s 47(2)(b), which contemplates the possibility of a reasonable choice to accept the risk of relying on the care and skill of a person who was, and should have been known to be, intoxicated, it may be said that it imposes upon a plaintiff an unduly stringent qualification for the exception in s 47(2)(b).[10]Chadwick v Allen [2012] SADC 105 at [142]‑[143].[11]Chadwick v Allen [2012] SADC 105 at [94].

Ratio Decidendi

Legal Principle Established

Established by:

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